Exhibit
10.35


$250,000,000


MASTER REPURCHASE
AGREEMENT


Dated as of November 1,
2006


among


CAPITAL TRUST, INC.


as Seller,


and


JPMORGAN CHASE BANK,
N.A.,


as Buyer


 
















TABLE OF CONTENTS


	
   

  	
   

  	
  Page

  
	
  ARTICLE 1.

  	
  APPLICABILITY

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3.

  	
  INITIATION; CONFIRMATION; TERMINATION; FEES;
  REDUCTION OF FACILITY AMOUNT

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4.

  	
  MARGIN MAINTENANCE

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5.

  	
  INCOME PAYMENTS AND PRINCIPAL PAYMENTS

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6.

  	
  SECURITY INTEREST

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7.

  	
  PAYMENT, TRANSFER AND CUSTODY

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8.

  	
  SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED
  ASSETS

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9.

  	
  RESERVED

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11.

  	
  NEGATIVE COVENANTS OF SELLER

  	
  51

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12.

  	
  AFFIRMATIVE COVENANTS OF SELLER

  	
  52

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  	
  EVENTS OF DEFAULT; REMEDIES

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14.

  	
  SINGLE AGREEMENT

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15.

  	
  RECORDING OF COMMUNICATIONS

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16.

  	
  NOTICES AND OTHER COMMUNICATIONS

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17.

  	
  ENTIRE AGREEMENT; SEVERABILITY

  	
  62

  




 i
 









 


	
  ARTICLE 18.

  	
  NON-ASSIGNABILITY

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 19.

  	
  GOVERNING LAW

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 20.

  	
  NO WAIVERS, ETC

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 21.

  	
  USE OF EMPLOYEE PLAN ASSETS

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE 22.

  	
  INTENT

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE 23.

  	
  DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 24.

  	
  CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL

  	
  65

  
	
   

  	
   

  	
   

  
	
  ARTICLE 25.

  	
  NO RELIANCE

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE 26.

  	
  INDEMNITY

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 27.

  	
  DUE DILIGENCE

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 28.

  	
  SERVICING

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE 29.

  	
  MISCELLANEOUS

  	
  69

  




 ii
 









ANNEXES, EXHIBITS AND SCHEDULES


 


	
  

  	
   

  
	
  ANNEX I

  	
  Names and Addresses for Communications between
  Parties

  
	
   

  	
   

  
	
  SCHEDULE I

  	
  Advance Rates and Applicable Pricing Rates

  
	
   

  	
   

  
	
  EXHIBIT I

  	
  Form of Confirmation

  
	
   

  	
   

  
	
  EXHIBIT II

  	
  Authorized Representatives of Seller

  
	
   

  	
   

  
	
  EXHIBIT III

  	
  Monthly Reporting Package

  
	
   

  	
   

  
	
  EXHIBIT IV

  	
  Form of Custodial Delivery

  
	
   

  	
   

  
	
  EXHIBIT V

  	
  Form of Power of Attorney

  
	
   

  	
   

  
	
  EXHIBIT VI

  	
  Representations and Warranties Regarding Individual
  Purchased Assets

  
	
   

  	
   

  
	
  EXHIBIT VII

  	
  Asset Information

  
	
   

  	
   

  
	
  EXHIBIT VIII

  	
  Advance Procedure

  
	
   

  	
   

  
	
  EXHIBIT IX

  	
  Excluded Transferees

  
	
   

  	
   

  
	
  EXHIBIT X

  	
  Form of Bailee Letter

  
	
   

  	
   

  
	
  EXHIBIT XI

  	
  [Reserved]

  
	
   

  	
   

  
	
  EXHIBIT XII

  	
  Form of Margin Deficit Notice

  
	
   

  	
   

  
	
  EXHIBIT XIII

  	
  UCC Filing Jurisdictions

  
	
   

  	
   

  
	
  EXHIBIT XIV

  	
  [Reserved]

  
	
   

  	
   

  
	
  EXHIBIT XV

  	
  Additional Eligible Collateral

  
	
   

  	
   

  
	
  EXHIBIT XVI

  	
  Form of Servicer Notice

  
	
   

  	
   

  
	
  EXHIBIT XVII

  	
  Form of Release Letter

  
	
   

  	
   

  
	
  EXHIBIT XVIII

  	
  [Reserved]

  
	
   

  	
   

  
	
  EXHIBIT XIX

  	
  Covenant Compliance Certificate

  
	
   

  	
   

  
	
  EXHIBIT XX

  	
  Control Agreement

  
	
   

  	
   

  
	
  EXHIBIT XXI

  	
  Form of Custodial Agreement

  



 



 iii














MASTER REPURCHASE AGREEMENT


MASTER REPURCHASE
AGREEMENT, dated as of November 1, 2006, by and among CAPITAL TRUST, INC., a
Maryland corporation (the “Seller”
with respect to the Eligible Assets that it sells to Buyer) and JPMORGAN CHASE
BANK, N.A., a banking association organized under the laws of the United States
(the “Buyer”).


ARTICLE
1.

APPLICABILITY


From time to time the
parties hereto may enter into transactions in which Seller and Buyer agree to
the transfer from Seller to Buyer all of its rights, title and interest to
certain Eligible Assets (as defined herein) or other assets and, in each case,
the other related Purchased Items (as defined herein) (collectively, the “Assets”) against the
transfer of funds by Buyer to Seller, with a simultaneous agreement by Buyer to
transfer back to Seller such Assets at a date certain or on demand, against the
transfer of funds by Seller to Buyer. 
Each such transaction shall be referred to herein as a “Transaction” and,
unless otherwise agreed in writing, shall be governed by this Agreement,
including any supplemental terms or conditions contained in any exhibits
identified herein as applicable hereunder. 
Each individual transfer of an Eligible Asset shall constitute a distinct
Transaction.


ARTICLE
2.

DEFINITIONS


“Accelerated Repurchase Date”
shall have the meaning specified in Article 13(b)(i) of this Agreement.


“Accepted Servicing Practices”
shall mean with respect to any applicable Purchased Asset, those mortgage
servicing practices of prudent mortgage lending institutions that service
mortgage and/or mezzanine loans of the same type as such Purchased Asset in the
state where the related underlying real estate directly or indirectly securing
or supporting such Purchased Asset is located.


“Acceptable Attorney”
means an attorney-at-law that has delivered at Seller’s request a
Bailee Letter, with the exception of an attorney whom Buyer has notified Seller
is not satisfactory to Buyer.


“Act of Insolvency”
shall mean, with respect to any Person, (i) the filing of a petition,
commencing, or authorizing the commencement of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law
relating to the protection of creditors, or suffering any such petition or
proceeding to be commenced by another which is consented to, not timely
contested or results in entry of an order for relief; (ii) the seeking or
consenting to the appointment of a receiver, trustee, custodian or similar
official for such Person or any substantial part of the property of such
Person; (iii) the appointment of a receiver, conservator, or manager for
such Person by any governmental agency or authority having the jurisdiction to
do so; (iv) the making of a general assignment for the benefit of












creditors; (v) the
admission by such Person of its inability to pay its debts or discharge its
obligations as they become due or mature; or (vi) that any Governmental
Authority or agency or any person, agency or entity acting or purporting to act
under Governmental Authority shall have taken any action to condemn, seize or
appropriate, or to assume custody or control of, all or any substantial part of
the property of such Person, or shall have taken any action to displace the
management of such Person or to curtail its authority in the conduct of the
business of such Person.


“Additional
Eligible Collateral” shall mean any of the items indicated on Exhibit XV
hereto.


“Advance Rate” shall
mean, with respect to each Transaction and any Pricing Rate Period, the initial
Advance Rate selected by Seller for such Transaction as shown in the related
Confirmation, unless otherwise agreed to by Buyer and Seller,.


“Affiliate” shall mean,
when used with respect to any specified Person, (i) any other Person
directly or indirectly controlling, controlled by, or under common control
with, such Person.  Control shall mean
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise and “controlling” and “controlled”
shall have meanings correlative thereto, or (ii) any “affiliate” of such
Person, as such term is defined in the Bankruptcy Code.


“Affiliated
Hedge Counterparty” shall mean JPMorgan Chase Bank, N.A., or any
Affiliate thereof, in its capacity as a party to any Hedging Transaction with
Seller.


“Agreement” shall mean
this Master Repurchase Agreement, dated as of November 1, 2006 by and among
Capital Trust, Inc. and JPMorgan Chase Bank, N.A., as such agreement may be
modified or supplemented from time to time.


“Alternative Rate”
shall have the meaning specified in Article 3(h) of this Agreement.


“Alternative Rate Transaction”
shall mean, with respect to any Pricing Rate Period, any Transaction with
respect to which the Pricing Rate for such Pricing Rate Period is determined
with reference to the Alternative Rate.


“Applicable Spread”
shall mean, with respect to a Transaction involving a Purchased Asset in any
Asset Type Grouping:


(i)       so long as no Event of Default shall have
occurred and be continuing, the incremental per annum rate (expressed as a
number of “basis points”, each basis point being equivalent to 1/100 of 1%)
specified in Schedule I attached to this Agreement as being the “Applicable
Spread” for Purchased Assets in such Asset Type Grouping for the applicable
loan-to-value ratio shown on Schedule I or Rating
Agency ratings, as applicable, or such lower rate as may be determined by Buyer
in its sole discretion, in the event that the Advance Rate applicable to any
Purchased Asset is less than the related Maximum Advance Rate, in each case as
determined by the Buyer on each Pricing Rate Determination Date in accordance
with Article 3(d), and



 2
 








(ii)      after the occurrence and during the
continuance of an Event of Default, the applicable incremental per annum rate
described in clause (i) of this definition, plus 400 basis points (4.0%).


“Asset Information”
shall mean, with respect to each Purchased Asset, the information set forth in Exhibit
VII attached hereto.


“Asset Type Grouping”
shall mean, with respect to the Eligible Assets, any of the types of Eligible
Assets listed in Schedule I attached to this Agreement.


“Assets” shall have the
meaning specified in Article 1.


“B-Note”
means the original promissory note, if any, that was executed and delivered in
connection with the subordinate portion of a Senior Mortgage Loan.


“Bailee Letter” means a
letter from an Acceptable Attorney or from a Title Company, in the form
attached to this Agreement as Exhibit X, wherein such Acceptable
Attorney or Title Company in possession of a Purchased Asset File (i)
acknowledges receipt of such Purchased Asset File, (ii) confirms that such
Acceptable Attorney, Title Company, or other Person acceptable to Buyer is
holding the same as bailee of Buyer under such letter and (iii) agrees that
such Acceptable Attorney or Title Company shall deliver such Purchased Asset
File to the Custodian by not later than the third (3rd) Business Day following
the Purchase Date for the related Purchased Asset.


“Bankruptcy
Code” shall mean The United States Bankruptcy Code of 1978, as amended from
time to time.


“Business Day” shall
mean a day other than (i) a Saturday or Sunday, or (ii) a day in which the New
York Stock Exchange or banks in the State of New York are authorized or
obligated by law or executive order to be closed.  Notwithstanding the foregoing sentence, when
used with respect to the determination of LIBOR, “Business Day” shall only be a
day on which commercial banks are open for international business (including
dealings in U.S. Dollar deposits) in London, England.


“Buyer” shall mean
JPMorgan Chase Bank, N.A., or any successor.


“Buyer’s Margin Amount”
shall mean with respect to any Transaction and any Purchased Asset on any date,
the Maximum Advance Rate available for such Purchased Asset, multiplied by the
Market Value of such Purchased Asset as of the date of determination.


“Capitalized
Lease Obligations” shall mean obligations under a lease that are required
to be capitalized for financial reporting purposes in accordance with
GAAP.  The amount of a Capitalized Lease
Obligation is the capitalized amount of such obligation as would be required to
be reflected on the balance sheet prepared in accordance with GAAP of the
applicable Person as of the applicable date.


“Cash Management Account”
shall mean a segregated interest bearing account, in the name of Buyer,
established at the Depository pursuant to the Control Agreement.



 3
 








“CF Sweep Event” shall
mean a determination by Buyer, in accordance with Article 4 of this
Agreement, that a Margin Deficit exists.


“Closing Date”
shall mean November 1, 2006.


“CMBS”
shall mean pass-through certificates representing beneficial
ownership interests in one or more first lien mortgage loans secured by
commercial and/or multifamily properties, regardless of
rating.


“Code” shall mean the
Internal Revenue Code of 1986, as amended.


“Collateral” shall have
the meaning specified in Article 6 of this Agreement.


“Collection Period”
shall mean with respect to the Remittance Date in any month, the period
beginning on but excluding the Cut-off Date in the month preceding the
month in which such Remittance Date occurs and continuing to and including the
Cut-off Date immediately preceding such Remittance Date.


“Confirmation” shall
have the meaning specified in Article 3(b) of this Agreement.


“Control Agreement”
shall mean that certain Depository Agreement, dated as of the date hereof,
among Buyer, Seller and the Depository, in the form attached hereto as Exhibit
XX.


“Covenant Compliance Certificate”
shall have the meaning specified in Article 3(b)(ix) hereof.


“CRE CDO”
shall mean commercial real estate collateralized debt obligations.


“Custodial Agreement”
shall mean the Custodial Agreement, dated as of the date hereof, by and among
the Custodian, Seller and Buyer, the form of which is attached hereto as Exhibit XXI.


“Custodial Delivery”
shall mean the form executed by Seller in order to deliver the Purchased Asset
Schedule and the Purchased Asset File to Buyer or its designee (including the
Custodian) pursuant to Article 7 of this Agreement, a form of which is
attached hereto as Exhibit IV.


“Custodian” shall mean
LaSalle Bank, National Association, or any successor Custodian appointed by
Buyer with the consent of Seller.


“Cut-off Date”
shall mean the second Business Day preceding each Remittance Date.


“Default”
shall mean any event which, with the giving of notice, the passage of time, or
both, would constitute an Event of Default.


“Defaulted Mortgage Asset”
shall mean any loan (a) that is sixty (60) days or more delinquent in the
payment of principal, interest, fees or other amounts payable under the terms
of the related loan documents, (b) as to which an Act of Insolvency shall have
occurred with respect



 4
 








to the Borrower or (c) as
to which a material non-monetary event of default shall have occurred under any
document included in the Purchased Asset File for such Purchased Asset.


“Delinquent
Mortgage Asset” shall mean a loan that is thirty (30) or more days, but less
than sixty (60) days, delinquent in the payment of principal, interest, fees or
other amounts payable under the terms of the related loan documents.


“Depository” shall mean
PNC Bank, National Association, or any successor Depository appointed by Buyer
with the prior written consent of Seller (such consent to not be unreasonably
withheld or delayed).


“Diligence Materials”
shall mean the Preliminary Due Diligence Package together with the Supplemental
Due Diligence List.


“Draft Appraisal” shall
mean a short form appraisal, “letter opinion of value,” or any other form of
draft appraisal acceptable to Buyer.


“Early Repurchase Date”
shall have the meaning specified in Article 3(e) of this Agreement.


“EBITDA”
shall mean, for any period, the sum, without duplication, for such period of
(a) Net Income of Seller for such period, (b) the sum of provisions for such
period for income taxes, interest expense, and depreciation and amortization
expense used in determining such Net Income, (c) amounts deducted in accordance
with GAAP in respect of other non cash expenses in determining such Net Income
and (d) the amount of any aggregate net loss (or minus the amount of any gain)
during such period arising from the sale, exchange or other disposition of
capital assets (determined in accordance with GAAP) by Seller, excluding any
reporting implications of Financial Interpretations No. 45 and 46 and FASB 150.


“EBITDA to
Fixed Charge Ratio” shall mean, determined as of any date of determination,
the ratio of (x) EBITDA during the twelve (12) month period ending on the date
of determination to (y) the Fixed Charges due and owing during the twelve (12)
month period ending on the date of determination.


“Eligible Assets” shall
mean any of the following types of assets or loans (i) that are acceptable to
Buyer in its sole and absolute discretion, exercised in good faith (ii) with
respect to which there is not a Material Breach with respect to the
representations and warranties set forth in this Agreement (including the
exhibits hereto) and (iii) that are secured directly or indirectly by a
property that is a multifamily, retail, office, warehouse and hospitality
property (or any other property type acceptable to Buyer in its sole
discretion, exercised in good faith) and is located in the United States of
America, its territories or possessions (or elsewhere, in the sole discretion
of Buyer):


(i)           Senior Mortgage Loans;


 


(ii)          B-Notes/Junior Interests;


 


(iii)         Mezzanine Loans;


 



 5
 








(iv)     CMBS;


(v)     CRE CDO rated BB-/Ba3 or higher, or, if
issued by Seller or an Affiliate of Seller, rated BBB/Baa3 or higher;


(vi)    any Additional Eligible Collateral
transferred to Buyer in connection with a Margin Deficit; and


(vii)    any other asset types or classifications
that are mutually acceptable to Buyer and Seller, subject to mutual agreement
on all necessary and appropriate modifications to this Agreement and each of
the Transaction Documents, as determined by Buyer in its sole and absolute
discretion.


Notwithstanding anything
to the contrary contained in this Agreement, the following shall not be
Eligible Assets for purposes of this Agreement: (i) Non-performing loans;
(ii) loans that are Defaulted Mortgage Assets or Delinquent Mortgage Assets; or
(iii) assets secured directly or indirectly by loans described in the preceding
clauses (i) or (ii), other than CMBS or CRE CDO.


“Eligible Loans” shall mean any Senior Mortgage
Loans, B-Notes/Junior Interests or Mezzanine Loans that are also
Eligible Assets.


“Environmental Law”
shall mean any federal, state, foreign or local statute, law, rule, regulation,
ordinance, code, guideline, written policy and rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, employee health
and safety or Hazardous Materials, including, without limitation, CERCLA; RCRA;
the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.;
the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.;
the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Safe
Drinking Water Act, 42 U.S.C. § 3803 et seq.; the Oil
Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 U.S.C.
§ 11001 et seq.; the Hazardous Material Transportation Act,
49 U.S.C. § 1801 et seq. and the Occupational Safety and
Health Act, 29 U.S.C. § 651 et seq.; and any state and local
or foreign counterparts or equivalents, in each case as amended from time to
time.


“Environmental Site Assessment”
shall have the meaning specified in paragraph 30 of the section of Exhibit
VI dealing with Eligible Loans.


“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as amended from time to time,
and the regulations promulgated thereunder. 
Article references to ERISA are to ERISA, as in effect at the date of
this Agreement and, as of the relevant date, any subsequent provisions of
ERISA, amendatory thereof, supplemental thereto or substituted therefor.


“ERISA Affiliate” shall
mean any corporation or trade or business that is a member of any group of
organizations (i) described in Article 414(b) or (c) of the Code of which
Seller is a member and (ii) solely for purposes of potential liability under
Article 302(c)(11) of ERISA and Article 412(c)(11) of the Code and the
lien created under Article 302(f) of ERISA and 



 6
 








Article 412(n) of
the Code, described in Article 414(m) or (o) of the Code of which Seller is a
member.


“Event of Default”
shall have the meaning specified in Article 13 of this Agreement.


“Extension
Period” shall have the meaning specified in Article 3(l) of this
Agreement.


“Extension
Structuring Fee” shall have the meaning set forth in Article 3(l) of this
Agreement.


“Facility Amount” shall
mean $250,000,000, or such lesser amount as determined by Seller in accordance
with Article 3(m).


“Federal Funds Rate”
shall mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for the day of such
transactions received by Buyer from three federal funds brokers of recognized
standing selected by it.


“Filings” shall have
the meaning specified in Article 6(d) of this Agreement.


“Financing Lease” shall mean any lease of property, real or
personal, the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the lessee.


“Fixed Charges”
shall mean, for any period, the sum, without duplication, of (a) Interest
Expense, (b) provisions for cash income taxes made and (c) scheduled payments
made on account of principal on Indebtedness.


“Foreclosed
Loan” shall mean an Eligible Loan with respect to which the Underlying
Mortgaged Property has been foreclosed upon by Seller or, in the case of Junior
Interest, by the Servicer of the Underlying Mortgage Loan.


“GAAP” shall mean
United States generally accepted accounting principles consistently applied as
in effect from time to time.


“Governmental Authority”
shall mean any national or federal government, any state, regional, local or
other political subdivision thereof with jurisdiction and any Person with
jurisdiction exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (including any supra-national
bodies such as the  European Union or the
European Central Bank).


“Hedge-Required Asset” shall mean any Eligible
Asset that is a fixed rate Eligible Asset.


“Hedging Transactions”
shall mean, with respect to any or all of the Purchased Assets, any short sale
of U.S. Treasury Securities or mortgage-related securities, futures
contract (including Eurodollar futures) or options contract or any interest
rate swap, cap or collar



 7
 








agreement or similar
arrangements providing for protection against fluctuations in interest rates or
the exchange of nominal interest obligations, entered into by any Affiliated
Hedge Counterparty or Qualified Hedge Counterparty with Seller, either
generally or under specific contingencies that is required by Buyer, or otherwise
pursuant to this Agreement, to hedge a Hedge-Required Asset, or that Seller has
elected to pledge or transfer to Buyer pursuant to this Agreement.


“Income” shall mean,
with respect to any Purchased Asset at any time, (x) any collections of
principal, interest, dividends, receipts or other distributions or collections,
(y) all net sale proceeds received by Seller or any Affiliate of Seller in
connection with a sale or liquidation of such Purchased Asset and (z) all
payments actually received by Buyer on account of Hedging Transactions.


“Indebtedness”
shall mean, for any Person,  (a)
obligations created, issued or incurred by such Person for borrowed money
(whether by loan, the issuance and sale of debt securities or the sale of
property to another Person subject to an understanding or agreement, contingent
or otherwise, to repurchase such property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of property or
services, other than trade accounts payable (other than for borrowed money)
arising, and accrued expenses incurred, in the ordinary course of business so
long as such trade accounts payable are payable within ninety (90) days of the
date the respective goods are delivered or the respective services are
rendered; (c) Indebtedness of others secured by a lien on the property of such
Person, whether or not the respective Indebtedness so secured has been assumed
by such Person; (d) obligations (contingent or otherwise) of such Person in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for account of such Person; (e) obligations of
such Person under repurchase agreements, sale/buy-back agreements or like
arrangements; (f) Indebtedness of others guaranteed by such Person; (g) all
obligations of such Person incurred in connection with the acquisition or
carrying of fixed assets by such Person; (h) Indebtedness of general
partnerships of which such Person is secondarily or contingently liable (other
than by endorsement of instruments in the course of collection), whether by
reason of any agreement to acquire such indebtedness to supply or advance sums
or otherwise; (i) Capitalized Lease Obligations of such Person; (j) all net
liabilities or obligations under any interest rate, interest rate swap,
interest rate cap, interest rate floor, interest rate collar, or other hedging
instrument or agreement; and (k) all obligations of such Person under Finance
Leases.


“Indemnified Amounts”
and “Indemnified Parties” shall have the meaning specified in Article
26 of this Agreement.


“Internal
Revenue Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated and rulings issued thereunder.


“Interest
Expense” shall mean, for any period, the total of all interest expense with
respect to all outstanding Indebtedness including, without limitation, all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers’ acceptance financing and net costs under all Hedge
Transactions with respect to interest rates to the extent such net costs are
allocable to such period in accordance with GAAP.



 8















“Junior
Certificate” shall mean the original participation certificate, if any,
that was executed and delivered in connection with a Junior Interest that is a
junior participation.


“Junior
Interest” shall mean a performing junior participation interest in a
stabilized or transitional senior commercial, multifamily fixed or floating
rate mortgage loan secured by a first lien on multifamily and commercial
properties or a subordinate portion of a Senior Mortgage Loan evidenced by a
Junior Certificate.


“Leverage”
shall mean, for any Person, the aggregate amount of indebtedness for money
borrowed (included purchase money mortgage loans) outstanding at any time, both
secured and unsecured.


“LIBOR” shall mean the
rate per annum calculated as set forth below:


(i)       On each Pricing Rate Determination Date,
LIBOR for the next Pricing Rate Period will be the rate for deposits in United
States dollars for a one-month period that appears on Telerate Page 3750
as of 11:00 a.m., London time, on such date; or


(ii)      On any Pricing Rate Determination Date on
which no such rate appears on Telerate Page 3750 as described above, LIBOR for
the next Pricing Rate Period will be determined on the basis of the arithmetic
mean of the rates at which deposits in United States dollars are offered by the
Reference Banks at approximately 11:00 a.m., London time, on such date to prime
banks in the London interbank market for a one-month period.


All percentages resulting
from any calculations or determinations referred to in this definition will be
rounded upwards, if necessary, to the nearest multiple of 1/100 of 1% and all
U.S. dollar amounts used in or resulting from such calculations will be rounded
to the nearest cent (with one-half cent or more being rounding upwards).


“LIBO Rate” shall mean,
with respect to any Pricing Rate Period pertaining to a Transaction, a rate per
annum determined for such Pricing Rate Period in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):


LIBOR






1 — Reserve Requirement


“LIBOR Transaction”
shall mean, with respect to any Pricing Rate Period, any Transaction with
respect to which the Pricing Rate for such Pricing Rate Period is determined
with reference to the LIBO Rate.


“Lien”
shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
financing lease having substantially the same economic effect as any of the
foregoing), 



 9
 









and the filing of any
financing statement under the UCC or comparable law of any jurisdiction in
respect of any of the foregoing.


“Margin
Deadline” has the meaning specified in Article 4(a).


“Margin Deficit” shall
have the meaning specified in Article 4(a).


“Market Value” shall
mean, with respect to any Purchased Asset as of any relevant date, the market
value for such Purchased Asset on such date as determined by Buyer in its sole
and absolute discretion, exercised in good faith.  The Market Value shall, at Buyer’s option, be
deemed to be zero with respect to each Purchased Asset (i) in respect of which
there is a Material Breach of a representation and warranty set forth in Article
10(b)(x)(D) of this Agreement that has not been cured by Seller, if a cure
is permitted in accordance with the terms of this Agreement, or such Material
Breach is waived in writing by Buyer (assuming that each representation and
warranty is made or remade as of each date that the Market Value is
determined), (ii) subject to Article 7(c), in respect of which the
complete Purchased Asset File has not been delivered to the Custodian in accordance
with the terms of the Custodial Agreement, (iii) that has been released from
the possession of the Custodian under the Custodial Agreement to Seller for a
period in excess of twenty (20) calendar days, (iv) upon the occurrence of any
Act of Insolvency with respect to any co-participant or any other Person having
an interest in such Purchased Asset or any related Underlying Mortgaged
Property that is senior to, or pari passu
with, in right of payment or priority the rights of Buyer in such Purchased
Asset, and (v) that is determined by Buyer not to be an Eligible Asset.


The Market Value of each
Purchased Asset may be determined by Buyer, in its sole discretion, on each
Business Day during the term of this Agreement.


“Material
Adverse Effect” shall mean a material adverse effect on (a) the financial
condition or prospects of Seller, (b) the ability of Seller to perform its
obligations under any of the Transaction Documents, (c) the validity or
enforceability of any of the Transaction Documents, or (d) the rights and
remedies of Buyer under any of the Transaction Documents.


“Material Breach” shall mean, with respect to any Purchased
Asset, a breach of a representation or warranty applicable to such Purchased
Asset that results in a determination by Buyer in its sole and absolute
discretion, exercised in good faith, that the Market Value of the related
Purchased Asset has decreased by an amount greater than 25% of its then
current Market Value as a result of the existence of such breach.


“Materials of
Environmental Concern” shall mean any toxic mold, any petroleum (including,
without limitation, crude oil or any fraction thereof) or petroleum products
(including, without limitation, gasoline) or any hazardous or toxic substances,
materials or wastes, defined as such in or regulated under any Environmental
Law, including, without limitation, asbestos, polychlorinated biphenyls, and
urea-formaldehyde insulation.


“Maturity Date”
shall mean November 1, 2007, or such later date as may be in effect pursuant to
Article 3(l) hereof.  Notwithstanding
anything to the contrary in Article 3(l) hereof, the Maturity Date shall not be
any date beyond November 1, 2009.



 10
 









“Maximum Advance Rate”
shall mean, with respect to each Purchased Asset, the “Advance Rate” specified
for the applicable Asset Type Grouping in Schedule I attached to
this Agreement for the applicable loan-to-value ratio shown in Schedule I
or Rating Agency rating, as applicable, or as otherwise agreed to by Seller and
Buyer, as determined by Buyer in the Confirmation.


“Mezzanine
Loan” shall mean
a performing loan (or a participation therein) primarily secured by a pledge of
full or partial equity ownership interests in one or more entities that own
directly or indirectly multifamily or commercial properties that serve as
collateral for Senior Mortgage Loans.


“Mezzanine Note”
shall mean the original promissory note that was executed and delivered in
connection with a particular Mezzanine Loan.


“Minimum
Transfer Amount” shall mean, with respect to Seller, $250,000; provided,
however, that if a Default or an Event of Default has occurred and is
continuing hereunder, the Minimum Transfer Amount shall be U.S. $0.


“Moody’s” shall mean
Moody’s Investors Service, Inc.


“Mortgage” shall mean a
mortgage, deed of trust, deed to secure debt or other instrument, creating a
valid and enforceable first Lien on or a first priority ownership interest in
an estate in fee simple in real property and the improvements thereon, securing
a Mortgage Note or similar evidence of indebtedness.


“Mortgage Note” shall
mean a note or other evidence of indebtedness of a Mortgagor secured by a
Mortgage, including any A-Note, B-Note or Junior Certificate that is a
Purchased Asset.


“Mortgagor” shall mean
the obligor on a Mortgage Note and the grantor of the related Mortgage, or the
obligor on a Mezzanine Note or Junior Interest.


“Multiemployer Plan”
shall mean a multiemployer plan defined as such in Article 3(37) of ERISA to
which contributions have been, or were required to have been, made by Seller or
any ERISA Affiliate and that is covered by Title IV of ERISA.


“Net Assets”
shall mean, for any Person, total assets (other than intangibles) at cost,
before deducting depreciation, reserves for bad debts or other non-cash
reserves, less total liabilities.


“Net Income”
shall mean, with respect to any Person for any period, the net income of such
Person for such period as determined in accordance with GAAP.


“Net Operating
Income” shall mean, with respect to any Underlying Mortgaged Property, for
any period, the actual net operating income (including, but not limited to, any
net income from Hedging Transactions) calculated in accordance with customary
Commercial Mortgage Securities Association (CMSA) criteria for commercial
mortgaged properties.



 11
 









“New Asset” shall mean
an Eligible Asset that a Seller proposes to be included as a Purchased Item.


“Originated Asset”
shall mean any Eligible Asset originated by a Seller.


“Permitted
Liens” shall have the meaning specified in Article 11(e) hereof.


“Person” shall mean an
individual, corporation, limited liability company, business trust,
partnership, joint tenant or tenant-in-common, trust, joint stock
company, joint venture, unincorporated organization, or any other entity of
whatever nature, or a Governmental Authority.


“Plan” shall mean an
employee benefit or other plan established or maintained by Seller or any ERISA
Affiliate during the five year period ended prior to the date of this Agreement
or to which Seller or any ERISA Affiliate makes, is obligated to make or has,
within the five year period ended prior to the date of this Agreement, been
required to make contributions and that is covered by Title IV of ERISA or
Article 302 of ERISA or Article 412 of the Code, other than a Multiemployer
Plan.


“Plan Party”
shall have the meaning set forth in Article 21(a) of this Agreement.


“Pre-Existing Asset”
shall mean any Eligible Asset that is not an Originated Asset.


“Preliminary Due Diligence Package”
shall mean with respect to any New Asset, a summary memorandum outlining the
proposed transaction, including potential transaction benefits and all material
underwriting risks, all Underwriting Issues and all other characteristics of
the proposed transaction that a reasonable buyer would consider material,
together with the following due diligence information relating to the New Asset
to be provided by Seller to Buyer and Buyer’s counsel pursuant to this
Agreement:


(i)       With respect to each Eligible Asset that
consists of an Eligible Loan:


(i)       the Asset Information and, if available,
maps and photos;


(ii)      Seller’s internal credit memoranda used
for approval and underwriting;


(iii)     current rent roll and roll over schedule,
if applicable;


(iv)    cash flow pro-forma, plus historical
information, if available;


(v)     copies of appraisal, environmental,
engineering and any other third-party reports provided that, if
same are not available to Seller at the time of Seller’s submission of the
Preliminary Due Diligence Package to Buyer, Seller shall deliver such items to
Buyer promptly upon Seller’s receipt of such items;


(vi)    description of the underlying real estate
directly or indirectly securing or supporting such Purchased Asset and the
ownership structure of the 



 12
 









borrower and the sponsor (including, without
limitation, the board of directors, if applicable) and, to the extent that real
property does not secure such Eligible Loan, the related collateral securing
such Eligible Loan, if any;


(vii)   indicative debt service coverage ratios;


(viii)  indicative loan-to-value ratio;


(ix)     term sheet outlining the transaction
generally;


(x)      Seller’s relationship with the Mortgagor,
if any, and Mortgagor’s financial statements; and


(xi)     with respect to any New Asset that is a
Pre-Existing Asset, a list that specifically and expressly identifies any Purchased
Asset Documents that relate to such New Asset but are not in Seller’s
possession;


(xii)    analyses and/or reports with respect to such
other matters concerning the New Asset as Buyer may approve in its sole
discretion;


(xiii)   documents evidencing such New Asset, or
current drafts thereof, including, without limitation, underlying debt and
security documents, guaranties, the underlying borrower’s organizational
documents, warrant agreements, and loan and collateral pledge agreements, as
applicable, provided that, if same are not available to Seller at the
time of Seller’s submission of the Preliminary Due Diligence Package to Buyer,
Seller shall deliver such items to Buyer promptly upon Seller’s receipt of such
items;


(xiv)   in the case of Subordinate Eligible Assets,
all information described in this definition that would otherwise be provided
for the Underlying Mortgage Loan if it were an Eligible Asset, and in addition,
all documentation evidencing such Subordinate Eligible Asset; and


(xv)    any exceptions to the representations and
warranties set forth in Exhibit VI to this Agreement.


(ii)      With respect to each Eligible Asset that consists of CMBS:


(i)       the related prospectus or offering
circular;


(ii)      all structural and collateral term sheets
and all other computational or other similar materials provided to Seller in
connection with its acquisition of such CMBS;


(iii)     all distribution date statements issued in respect thereof during the
immediately preceding 12 months (or, if less, since the date such CMBS was
issued);



 13
 









(iv)    all monthly CMSA reporting packages issued
in respect of such CMBS during the immediately preceding 12 months (or, if
less, since the date such CMBS was issued);


(v)     all Rating Agency pre-sale reports;


(vi)    all
asset summaries and any other due
diligence materials, including, without limitation, reports prepared by third
parties, provided to Seller in connection with its acquisition of such CMBS;
and


(vii)   the
related pooling and servicing agreement.


With respect to
each Eligible Asset that consists of an CRE CDO:


(i)       the related prospectus or offering
circular;


(ii)      all remittance statements or other reports
issued in respect thereof during the immediately preceding 12 months (or, if
less, since the date such CRE CDO
was issued);


(iii)     any information or reports provided to
Seller in connection with its acquisition or ownership of the CRE CDO
asset;


(iv)    the related indenture;


(v)     the most recent annual and quarterly 1934
Act reports filed with respect to the related issuer, if applicable;


(vi)    all structural and collateral term sheets
and all other computational or other similar materials provided to Seller in
connection with its acquisition of such CRE CDO asset;


(vii)   all distribution date statements issued in respect thereof during the
immediately preceding 12 months (or, if less, since the date such CRE
CDO was issued);


(viii)  all monthly CMSA reporting packages issued in
respect of such CRE CDO during the
immediately preceding 12 months (or, if less, since the date such CRE
CDO was issued);


(ix)     all Rating Agency pre-sale reports; and


(x)      all
asset summaries and any other due
diligence materials, including, without limitation, reports prepared by third
parties, provided to Seller in connection with its acquisition of such CRE
CDO.


“Pre-Purchase
Due Diligence” shall have the meaning set forth in Article 3(b)(i)
hereof.


 



 14















“Pre-Purchase
Legal Fees”  shall mean all of the
reasonable and necessary out of pocket legal fees, costs and expenses incurred
by Buyer in connection with the Pre-Purchase Due Diligence associated with
Buyer’s decision as to whether or not to enter into a particular Transaction.


“Price Differential”
shall mean, with respect to any Purchased Asset as of any date, the aggregate
amount obtained by daily application of the applicable Pricing Rate for such
Purchased Asset to the Purchase Price of such Purchased Asset on a
360-day-per-year basis for the actual number of days during each Pricing Rate
Period commencing on (and including) the Purchase Date for such Purchased Asset
and ending on (but excluding) the date of determination (reduced by any amount
of such Price Differential previously paid by Seller to Buyer with respect to
such Purchased Asset).


“Pricing Rate” shall
mean, for any Pricing Rate Period, an annual rate equal to the sum of (i) the
LIBO Rate and (ii) the relevant Applicable Spread, in each case, for the
applicable Pricing Rate Period for the related Purchased Asset. The Pricing
Rate shall be subject to adjustment and/or conversion as provided in the
Transaction Documents.


“Pricing Rate Determination Date”
shall mean with respect to any Pricing Rate Period with respect to any
Transaction, the second (2nd) Business Day preceding the first day of such
Pricing Rate Period.


“Pricing Rate Period”
shall mean, with respect to any Transaction (a) in the case of the first
Pricing Rate Period, the period commencing on and including the Purchase Date
for such Transaction and ending on and excluding the following Remittance Date,
and (b) in the case of any subsequent Pricing Rate Period, the period
commencing on and including such Remittance Date and ending on and excluding
the following Remittance Date; provided, however, that in no
event shall any Pricing Rate Period for a Purchased Asset end subsequent to the
Repurchase Date for such Purchased Asset.


“Principal Payment”
shall mean, with respect to any Purchased Asset, any payment or prepayment
received by the Depository in respect thereof.


“Purchase Date” shall
mean, with respect to any Purchased Asset, the date on which Buyer purchases
such Purchased Asset from Seller hereunder.


“Purchase Price” shall
mean, with respect to any Purchased Asset, the price at which such Purchased
Asset is transferred by Seller to Buyer on the applicable Purchase Date,
adjusted after the Purchase Date as set forth below.  The Purchase Price as of the Purchase Date
for any Purchased Asset shall be an amount (expressed in dollars) equal to the
product obtained by multiplying (i) the Market Value of such Purchased Asset
(or the par amount of such Purchased Asset, if lower than Market Value) by (ii)
the “Advance Rate” for such Purchased Asset, as set forth in Schedule I
attached to this Agreement; provided, that notwithstanding the
foregoing, Seller may request that the Purchase Price set forth in a
Confirmation be determined by applying a percentage lower than the Advance Rate
set forth in Schedule I attached to this Agreement and, in such event, such
lower percentage shall be deemed the “Advance Rate” for purposes of this
Agreement.  The Purchase Price of any
Purchased Asset shall be (x) increased at Seller’s request 



 15
 









by any additional amount
advanced by Buyer to Seller with respect to such Purchased Asset and (y)
decreased by (i) the portion of any Principal Payments on such Purchased Asset
that are applied pursuant to Article 5 hereof to reduce such Purchase Price and
(ii) any other amounts paid to Buyer by Seller to reduce such Purchase Price.


“Purchased Asset Documents”
shall mean, with respect to a Purchased Asset, the documents comprising the
Purchased Asset File for such Purchased Asset.


“Purchased Asset File”
shall mean the documents specified as the “Purchased Asset File” in Article
7(b), together with any additional documents and information required to be
delivered to Buyer or its designee (including the Custodian) pursuant to this
Agreement; provided that to the extent that Buyer waives, including
pursuant to Article 7(c), receipt of any document in connection with the
purchase of an Eligible Asset (but not if Buyer merely agrees to accept
delivery of such document after the Purchase Date), such document shall not be
a required component of the Purchased Asset File until such time as the Buyer
determines in good faith that such document is necessary or appropriate for the
servicing of the applicable Purchased Asset.


“Purchased Asset” shall
mean (i) with respect to any Transaction, the Eligible Asset sold by Seller to
Buyer in such Transaction and (ii) with respect to the Transactions in general,
all Eligible Assets sold by Seller to Buyer and any Additional Eligible
Collateral delivered by Seller to Buyer pursuant to Article 4(a) of this
Agreement (other than Eligible Assets or Additional Eligible Collateral that
have been repurchased by Seller).


“Purchased Asset Schedule”
shall mean a schedule of Purchased Assets attached to each Trust Receipt and
Custodial Delivery containing information substantially similar to the Asset
Information.


“Purchased
Items” shall have the meaning specified in Article 6(a) of this
Agreement.


“Qualified
Hedge Counterparty” shall mean, with respect to any Hedging Transaction,
any entity, other than an Affiliated Hedge Counterparty, that (a) qualifies as
an “eligible contract participant” as such term is defined in the Commodity
Exchange Act (as amended by the Commodity Futures Modernization Act of 2000),
(b) the long-term debt of which is rated no less than “A+” by Standard &
Poor’s Ratings Group, a division of the McGraw-Hill Companies, and “A1” by
Moody’s Investor Services, Inc and (c) is reasonably acceptable to Buyer; provided,
that with respect to clause (c), if Buyer has approved an entity as a counterparty,
it may not thereafter deem such counterparty unacceptable with respect to any
previously outstanding Transaction unless clause (a) or clause (b) applies.


“Rating Agency” shall
mean any of Fitch Inc., Moody’s Investor Services, Inc. and Standard & Poor’s
Ratings Group, a division of the McGraw-Hill Companies.


“Reference Banks” shall
mean banks each of which shall (i) be a leading bank engaged in transactions in
Eurodollar deposits in the international Eurocurrency market and (ii) have an
established place of business in London. 
Initially, the Reference Banks shall be JPMorgan Chase Bank, Barclays
Bank, Plc and Deutsche Bank AG.  If any
such Reference Bank should be unwilling or unable to act as such or if Buyer
shall terminate the appointment of any such Reference Bank or if any of the
Reference Banks should be removed from the Reuters Monitor 



 16
 









Money Rates Service or in
any other way fail to meet the qualifications of a Reference Bank, Buyer, in
its sole discretion exercised in good faith, may designate alternative banks
meeting the criteria specified in clauses (i) and (ii) above.


“Release Letter”
shall mean a letter substantially in the form of Exhibit XVII hereto (or
such other form as may be acceptable to Buyer).


“Relevant System” shall
mean (a) The Depository Trust Company in New York, New York, or (b) such other
clearing organization or book-entry system as is designated in writing by
Buyer.


“REMIC”
shall mean a real estate mortgage investment conduit, within the meaning of
Section 860D(a) of the Internal Revenue Code.


“Remittance Date” shall
mean the twentieth (20th)
calendar day of each month, or the immediately following Business Day, if such
calendar day shall not be a Business Day, or such other day as is mutually
agreed to by Seller and Buyer.


“REO Property”
shall mean real property acquired by Seller, including a mortgaged property
acquired through foreclosure of an Eligible Asset or by deed in lieu of such
foreclosure.


“Repurchase Date” means
the earliest to occur of (i) the Termination Date, (ii) the date set forth in
the applicable Confirmation, or (iii) the Accelerated Repurchase Date.


“Repurchase Price”
shall mean, with respect to any Eligible Asset as of any Repurchase Date or any
date on which the Repurchase Price is required to be determined hereunder, the
price at which such Eligible Asset is to be transferred from Buyer to Seller;
such price will be determined in each case as the sum of the (i) Purchase Price
of such Eligible Asset, (ii) the accrued but unpaid Price Differential with
respect to such Eligible Asset as of the date of such determination (other
than, with respect to calculations in connection with the determination of a
Margin Deficit, accrued but unpaid Price Differential for the current Pricing
Rate Period), (iii) any other amounts due and owing to Buyer and its Affiliates
pursuant to the terms of this Agreement as of such date, (iv) any amounts that
would be payable to (a positive amount) a Qualified Hedge Counterparty under
any related Hedging Transaction, if such Hedging Transaction were terminated on
the date of determination; and (v) any amounts that would be payable to (a
positive amount) or by (a negative amount) an Affiliated Hedge Counterparty
under any related Hedging Transaction, if such Hedging Transaction were
terminated on the date of determination; provided, that with respect to
any determination of Repurchase Price that is made in connection with the
actual repurchase by Seller of any Purchased Asset (and not in connection with
any calculation of Margin Deficit or other determination that is made during
the course of a Transaction and that is not related to such a repurchase), (x)
the Repurchase Price for such Purchased Asset shall take into account amounts
payable to (a positive amount) or by (a negative amount) an Affiliated Hedge
Counterparty under any related Hedging Transaction only (i) as long as no
Default or Event of Default shall have occurred and be continuing, (ii) to the
extent such amounts are actually then due and payable under the related Hedging
Transaction with an Affiliated Hedge Counterparty and (iii) to the extent that
Seller shall have provided the applicable Affiliated Hedge Counterparty with
written instructions that any amounts payable to 



 17
 









Seller by such Affiliated
Hedge Counterparty under the related Hedging Transaction shall instead be paid
by such Affiliated Hedge Counterparty directly to Buyer and (y) no amounts
relating to a Hedging Transaction with a Qualified Hedge Counterparty shall be
taken into account.


“Requested
Exceptions Report” shall have the meaning assigned thereto in Article 3(b)(vi).


“Requirement of Law”
shall mean any law, treaty, rule, regulation, code, directive, policy, order or
requirement or determination of an arbitrator or a court or other Governmental
Authority whether now or hereafter enacted or in effect.


“Reserve Requirement”
shall mean, with respect to any Pricing Rate Period, the aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect during such Pricing Rate Period (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as “Eurocurrency Liabilities” in Regulation D of such Board of Governors)
maintained by Buyer.


“Responsible
Officer” shall mean any executive officer of Seller.


“Seller”
shall mean the entity identified as “Seller” in the Recitals hereto and
(ii) such other seller as may be approved by Buyer from time to time.


“Senior Mortgage Loans” 
shall mean performing senior commercial or multifamily fixed or floating
rate mortgage loans, A-notes or senior or pari passu participation
interests in those mortgage loans, in each case secured by first liens on
multifamily or commercial properties.


“Servicer” shall mean
Midland Loan Services, Inc.


“Servicer
Notice” shall mean a notice substantially in the form of Exhibit XVI
hereto, as amended, supplemented or otherwise modified from time to time.


“Servicing Agreement”
shall have the meaning specified in Article 28(b).


“Servicing Records”
shall have the meaning specified in Article 28(b).


“Structuring
Fee” shall have the meaning specified in Article 3(a)(xi) of this
Agreement.


“Subordinate Eligible Assets”
shall mean Eligible Assets described in items (ii) and (iii) of the definition
of Eligible Assets.


“Subsidiary”
shall mean, as to any Person, a corporation, partnership or other entity of
which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, 



 18
 









partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of Seller.


“Supplemental Due Diligence List”
shall mean, with respect to any New Asset, information or deliveries concerning
the New Asset that Buyer shall request in addition to the Preliminary Due
Diligence Package, including, without limitation, a credit approval memorandum
representing the final terms of the underlying transaction, a final loan-to-value
ratio computation and a final debt service coverage ratio computation for such
proposed New Asset.


“Survey” shall mean a
certified ALTA/ACSM (or applicable state standards for the state in which the
collateral is located) survey of the underlying real estate directly or
indirectly securing or supporting such Purchased Asset prepared by a registered
independent surveyor or engineer and in form and content satisfactory to Buyer
and the company issuing the Title Policy for such Property.


“Target Price” shall
mean, with respect to any Purchased Asset as of any date, the amount (expressed
in dollars) obtained by multiplying (i) the Market Value of such Purchased
Asset as of such date by (ii) the then-applicable Maximum Advance Rate
for such Purchased Asset.


“Telerate Page 3750”
shall mean the display page currently so designated on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying comparable rates or prices).


“Termination
Date” means, with respect to any Transaction, the earlier of (a) 364
days from the date of such Transaction, or if such Transaction is extended, the
date to which it is extended; (b) any Early Repurchase Date for such
Transaction; (c) the Maturity Date, or (d) the date of the occurrence
of an Event of Default.


“Termination
Date Extension Conditions”
shall have the meaning specified in Article 3(f) of this Agreement.


“Title Company” shall
mean a nationally-recognized title insurance company acceptable to Buyer.


“Title Policy” shall
have the meaning specified in paragraph 9 of the section of Exhibit VI
dealing with Eligible Loans.


“Total
Indebtedness” shall mean, for any period, the aggregate Indebtedness of
Seller and its consolidated Subsidiaries during such period (including, without
limitation, off-balance sheet Indebtedness), less the amount of any nonspecific
balance sheet reserves maintained in accordance with GAAP, provided that the
calculation of Total Indebtedness will exclude (i) amounts of liabilities resulting
from the sale of participation interests classified as participations sold on
the liabilities side of Seller’s balance sheet, (ii) liabilities resulting from
consolidation of debt associated with securitizations where Seller has no
recourse obligation for the debt and 



 19
 









which debt was not issued
by Seller or its Subsidiaries and (iii) liabilities resulting from the
consolidation of vehicles managed by Seller or a Subsidiary of Seller where
Seller has less than a 50% equity interest.


“Total
Non-Securitized Indebtedness” shall mean, for any period, the aggregate
Indebtedness of Seller and its consolidated Subsidiaries during such period
(including, without limitation, off-balance sheet Indebtedness), less the
amount of any nonspecific balance sheet reserves maintained in accordance with
GAAP, provided that the calculation of Total Indebtedness will exclude (i)
amounts of liabilities resulting from the sale of participation interests
classified as participations sold on the liabilities side of Seller’s balance
sheet, (ii) liabilities resulting from consolidation of debt associated with
securitizations where Seller has no recourse obligation for the debt and (iii)
liabilities resulting from the consolidation of vehicles managed by Seller or a
Subsidiary of Seller where Seller has less than a 50% equity interest.


“Transaction” shall
mean a Transaction, as specified in Article 1 of this Agreement.


“Transaction Documents”
shall mean, collectively, this Agreement, any applicable Annexes to this
Agreement, the Custodial Agreement, the Servicing Agreement, the Control
Agreement, all Hedging Transactions and all Confirmations and assignment
documentation executed pursuant to this Agreement in connection with specific
Transactions.


“Trust Receipt” shall
mean a trust receipt issued by Custodian to Buyer confirming the Custodian’s
possession of certain Purchased Asset Files that are the property of and held
by Custodian for the benefit of Buyer (or any other holder of such trust
receipt) or a bailment arrangement with counsel or other third party acceptable
to Buyer in its sole discretion.


“UCC” shall have the
meaning specified in Article 6(d) of this Agreement.


“Underlying Mortgage Loan” shall mean, with respect to any
B-Note, Junior Interest, Mezzanine Loan, CMBS or CRE CDO, a mortgage loan made
in respect of the related Underlying Mortgaged Property.


“Underlying Mortgaged Property” shall mean, in the case of:


(a)           a Senior Mortgage
Loan, the Mortgaged Property securing such Senior Mortgage Loan, as
appropriate;


(b)           a Junior Interest,
the Mortgaged Property securing such Junior Interest, or the Mortgaged Property
securing the Mortgage Loan in which such Junior Interest represents a junior
participation, as applicable;


(c)           a Mezzanine Loan,
the Mortgaged Property that is owned by the Person the equity of which is
pledged as collateral security for such Mezzanine Loan;


(d)           a CMBS, the
Mortgaged Property securing the mortgage loans related to such security;



 20
 









(e)           a CRE CDO, the
Mortgaged Property securing the mortgage loans related to such security.


“Underwriting Issues”
shall mean, with respect to any Purchased Asset as to which Seller intends to
request a Transaction, all material information that has come to Seller’s
attention that, based on the making of reasonable inquiries and the exercise of
reasonable care and diligence under the circumstances, would be considered a
materially “negative” factor (either separately or in the aggregate with other
information), or a material defect in loan documentation or closing deliveries
(such as any absence of any material Purchased Asset Document(s)), to a
reasonable institutional mortgage buyer in determining whether to originate or
acquire the Purchased Asset in question.


All references to
articles, schedules and exhibits are to articles, schedules and exhibits in or
to this Agreement unless otherwise specified. 
The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. 
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles.  References to “good faith” in this Agreement
shall mean “good faith” as defined in Section 1-201(19) of the UCC as in effect
in the State of New York as of the date of the Agreement.


ARTICLE
3.

INITIATION; CONFIRMATION; TERMINATION; FEES; REDUCTION OF 

FACILITY AMOUNT


Buyer’s agreement to
enter into the initial Transaction hereunder is subject to the satisfaction,
immediately prior to or concurrently with the making of such Transaction, of
the condition precedent that Buyer shall have received from Seller payment of
an amount equal to all fees and expenses payable hereunder, and all of the
following documents, each of which shall be satisfactory in form and substance
to Buyer and its counsel:


(a)           The
following Transaction Documents, as well as certain other documents, delivered
to Buyer:


(i)            this Agreement, duly completed and
executed by each of the parties hereto;


(ii)           a Custodial Agreement, duly executed
and delivered by each of the parties thereto;


(iii)          a Control Agreement, duly completed
and executed by each of the parties thereto;


(iv)          any and all consents and waivers
applicable to Seller or to the Purchased Assets;



 21
 









(v)           UCC Financing Statements for filing
in each of the UCC Filing Jurisdictions described on Exhibit XIII
hereto, each naming Seller as “Debtor” and Buyer as “Secured Party” and
describing as “Collateral” all of the items set forth in the definition of
Collateral and Purchased Items in this Agreement, together with any other
documents necessary or requested by Buyer to perfect the security interests
granted by Seller in favor of Buyer under this Agreement or any other
Transaction Document;


(vi)          any documents relating to any Hedging
Transactions;


(vii)         an opinion or opinions of outside
counsel to Seller, reasonably acceptable to Buyer;


(viii)        good standing certificates and certified
copies of the charters and by-laws (or equivalent documents) of Seller and of
all corporate or other authority for Seller with respect to the execution,
delivery and performance of the Transaction Documents and each other document
to be delivered by Seller from time to time in connection herewith (and Buyer
may conclusively rely on such certificate until it receives notice in writing
from Seller to the contrary);


(ix)           with respect to any Eligible Asset to
be purchased hereunder on the related Purchase Date that is not serviced by
Seller, Seller shall have provided to Buyer a copy of the related Servicing
Agreement, certified as a true, correct and complete copy of the original,
together with a Servicer Notice, fully executed by Seller and Servicer;


(x)            Buyer shall have received payment
from Seller of an amount equal to the amount of actual costs and expenses,
including, without limitation, the reasonable fees and expenses of counsel to
Buyer, incurred by Buyer in connection with the development, preparation and
execution of this Agreement, the other Transaction Documents and any other
documents prepared in connection herewith or therewith;


(xi)           Buyer shall have received payment
from Seller, as consideration for Buyer’s agreement to enter into this
Agreement, an up-front structuring fee in an amount equal [****] (calculated as
[****] basis points [****] multiplied by the Facility Amount), such amount to be paid to Buyer in U.S.
Dollars, in immediately available funds, without deduction, set-off or
counterclaim (the “Structuring Fee”); and


(xii)          all such other and further documents,
documentation and legal opinions as Buyer in its discretion shall reasonably
require.


(b)           Buyer’s
agreement to enter into each Transaction (including the initial Transaction) is
subject to the satisfaction of the following further conditions precedent, both
immediately prior to entering into such Transaction and also after giving
effect to the consummation thereof and the intended use of the proceeds of the
sale:


 






**** Material
omitted pursuant to a request for confidential treatment under Rule 24b-2 of
the Exchange Act of 1934.  Material filed
separately with the Securities and Exchange Commission.



 22
 









(i)            The sum of (A) the unpaid Repurchase
Price for all prior outstanding Transactions, (B) the requested Purchase Price
for the pending Transaction and (C) all available and unfunded Advances under
all prior outstanding Transactions shall not exceed an amount equal to the
Facility Amount.


(ii)           Seller shall give Buyer written
notice of each Transaction (including the initial Transaction), together with a
signed, written confirmation in the form of Exhibit I attached hereto
prior to each Transaction (a “Confirmation”).  Each Confirmation shall describe the
Purchased Assets, shall identify Buyer and Seller, shall be executed by both
Buyer and Seller (provided that, in instances where funds are
being wired to an account other than 230-254-632 at JPMorgan Chase Bank, N.A.,
the Confirmation shall be signed by two (2) authorized signatories of Seller); provided,
however, that Buyer shall not be liable to Seller if it inadvertently
acts on a Confirmation that has not been signed by two (2) such authorized
signatories, and shall set forth:


(A)          the Purchase Date;


(B)           the Purchase Price for the Purchased
Asset included in the Transaction;


(C)           the Repurchase Date;


(D)          any additional terms or conditions not
inconsistent with this Agreement; and


(E)           the requested
Advance Rate and the related Maximum Advance Rate.


(iii)          Buyer shall have the right to review
the Eligible Assets Seller proposes to sell to Buyer in any Transaction and to
conduct its own due diligence investigation of such Eligible Assets as Buyer
determines (“Pre-Purchase Due Diligence”).  Buyer shall be entitled to make a
determination, in the exercise of its sole discretion, that, in the case of a
Transaction, it shall or shall not purchase any or all of the assets proposed
to be sold to Buyer by Seller.  On the
Purchase Date for the Transaction that shall be not less than one (1) Business
Day following the final approval of an Eligible Asset by Buyer in accordance
with Exhibit VIII hereto, the Purchased Assets shall be transferred to
Buyer or the Custodian against the transfer of the Purchase Price to an account
of Seller.  Buyer shall inform Seller of
its determination with respect to any such proposed Transaction solely in
accordance with Exhibit VIII attached hereto.  Upon the approval by Buyer of a particular
proposed Transaction, Buyer shall deliver to Seller a signed copy of the
related Confirmation described in clause (i) above, on or before the scheduled
date of the underlying proposed Transaction. Prior to the approval of each
proposed Transaction by Buyer:


(A)          Buyer shall have (i) determined, in
its sole and absolute discretion, that the asset proposed to be sold to Buyer
by Seller in such Transaction is an Eligible Asset and (ii) obtained internal
credit approval, to be granted or denied in Buyer’s sole and absolute
discretion, for the inclusion of such Eligible Asset as a 



 23
 









Purchased
Asset in a Transaction, without regard for any prior credit decisions by Buyer
or any Affiliate of Buyer, and with the understanding that Buyer shall have the
absolute right to change any or all of its internal underwriting criteria at
any time, without notice of any kind to Seller;


(B)           Buyer shall have determined the Pricing
Rate applicable to the Transaction (including the Applicable Spread) in
accordance with Schedule I hereto or as otherwise agreed by Buyer
and Seller;


(C)           no Default or Event of Default shall
have occurred and be continuing under this Agreement or any other Transaction
Document and no event shall have occurred which has, or would reasonably be
expected to have, a Material Adverse Effect;


(D)          Seller shall have delivered to Buyer a
list of all exceptions to the representations and warranties relating to the
Purchased Asset and any other eligibility criteria for such Purchased Asset
(the “Requested Exceptions Report”);


(E)           Buyer shall have waived all
exceptions in the Requested Exceptions Report;


(F)           both immediately prior to the
requested Transaction and also after giving effect thereto and to the intended
use thereof,  (i)  the representations and warranties made by
Seller in Article 10, as applicable, (other than the representations and
warranties set forth in Article 10(b)(x)(D) shall be true, correct and complete
on and as of such Purchase Date in all material respects with the same force
and effect as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date) and  (ii) no Material
Breach shall have occurred and be continuing with respect to the
representations and warranties set forth in Article 10(b)(x)(D);


(G)           subject to Buyer’s right to perform
one or more due diligence reviews pursuant to Article 27, Buyer
shall have completed its due diligence review of the Purchased Asset File, and
such other documents, records, agreements, instruments, mortgaged properties or
information relating to such Purchased Asset as Buyer in its sole discretion
deems appropriate to review and such review shall be satisfactory to Buyer in
its sole discretion and Buyer has consented in writing to the Eligible Asset
becoming a Purchased Asset; provided, that if Buyer’s diligence review
of the Purchased Asset File requires the delivery of a mortgage file or the
equivalent, Seller shall have the benefit of such delayed delivery provisions
as are customary in pooling and servicing agreements (e.g., while a promissory
note (or analogous document directly evidencing the obligation) must be
delivered as a condition of closing, an ancillary document or estoppels may be
delivered within a reasonable time frame thereafter);



 24
 









(H)          with respect to any Eligible Asset to
be purchased hereunder on the related Purchase Date which is not serviced by Seller or an Affiliate thereof, Seller
shall have provided to Buyer a copy of the related Servicing Agreement,
certified as a true, correct and complete copy of the original, together with a
Servicer Notice, fully executed by Seller and Servicer;


(I)            Seller shall have paid to Buyer all
legal fees and expenses and the reasonable costs and expenses incurred by Buyer
in connection with the entering into of any Transaction hereunder, including,
without limitation, costs associated with due diligence, recording or other
administrative expenses necessary or incidental to the execution of any
Transaction hereunder, which amounts, at Buyer’s option, may be withheld from
the sale proceeds of any Transaction hereunder;


(J)            Buyer shall have determined, in its
sole and absolute discretion, that no Margin Deficit shall exist, either
immediately prior to or after giving effect to the requested Transaction;


(K)          Buyer shall have received from
Custodian on each Purchase Date an Asset Schedule and Exception Report (as defined
in the Custodial Agreement) with respect to each Purchased Asset, dated the
Purchase Date, duly completed and with exceptions acceptable to Buyer in its
sole discretion in respect of Eligible Assets to be purchased hereunder on such
Business Day;


(L)           Buyer shall have received from Seller
a Release Letter covering each Eligible Asset to be sold to Buyer;


(M)         Buyer shall not have reasonably
determined that the introduction of, or a change in, any Requirement of Law or
in the interpretation or administration of any Requirement of Law applicable to
Buyer has made it unlawful, and no Governmental Authority shall have asserted
that it is unlawful, for Buyer to enter into Transactions;


(N)          the Repurchase Date for such
Transaction is not later than the Maturity Date;


(O)          Seller shall have taken such other
action as Buyer shall have reasonably requested in order to transfer the
Purchased Assets pursuant to this Agreement and to perfect all security
interests granted under this Agreement or any other Transaction Document in
favor of Buyer with respect to the Purchased Assets;


(P)           with respect to any Eligible Asset to
be purchased hereunder, if such Eligible Asset was acquired by Seller, Seller
shall have disclosed to Buyer the acquisition cost of such Eligible Asset
(including therein reasonable supporting documentation required by Buyer, if
any);


 



 25















 


(Q)          Buyer shall have
received all such other and further documents, documentation and legal opinions
(including, without limitation, opinions regarding the perfection of Buyer’s
security interests) as Buyer in its reasonable discretion shall reasonably require;


(R)           Buyer shall have
received a copy of any documents relating to any Hedging Transaction, and
Seller shall have pledged and assigned to Buyer, pursuant to Article 6
hereunder, all of Seller’s rights under each Hedging Transaction included
within a Purchased Asset, if any;


(S)           no “Termination
Event”, “Event of Default”, “Potential Event of Default” or any similar event
by Seller, however denominated, shall have occurred and be continuing under any
Hedging Transaction; and


(T)           the counterparty to
Seller in any Hedging Transaction shall be an Affiliated Hedge Counterparty or
a Qualified Hedge Counterparty, and, in the case of a Qualified Hedge
Counterparty, in the event that such counterparty no longer qualifies as a
Qualified Hedging Counterparty, then, at the election of Buyer, Seller shall
ensure that such counterparty posts Additional Eligible Collateral in an amount
satisfactory to Buyer under all its Hedging Transactions with Seller, or Seller
shall immediately terminate the Hedging Transactions with such counterparty and
enter into new Hedging Transactions with a Qualified Hedge Counterparty.


(c)           With respect to any
Transaction, the Pricing Rate shall be determined initially on the Pricing Rate
Determination Date applicable to the first Pricing Rate Period for such
Transaction, and shall be reset on the Pricing Rate Determination Date for all
of the next succeeding Pricing Rate Periods for such Transaction.  Buyer or its agent shall determine in
accordance with the terms of this Agreement the Pricing Rate on each Pricing
Rate Determination Date for the related Pricing Rate Period taking into account
any changes in the applicable loan-to-value ratio shown on Schedule I or Rating
Agency ratings, as applicable, determined to be applicable to such Transaction
in the Buyer’s sole and absolute discretion, exercised in good faith, and
notify Seller of such rate for such period each such Pricing Rate Determination
Date; provided, however, that the Buyer shall have no affirmative
obligation to determine whether there has been any change in the related terms
or quality of the Purchased Asset to cause any change in the related loan-to-value
ratio or Rating Agency ratings.


(d)           Each Confirmation,
together with this Agreement, shall be conclusive evidence of the terms of the
Transaction(s) covered thereby.  In the
event of any conflict between the terms of such Confirmation and the terms of
this Agreement, other than with respect to the Advance Rate or the applicable
Price Differential set forth in the related Confirmation, this Agreement shall
prevail.


(e)           Buyer shall not be
permitted to terminate a Transaction on demand unless an Event of Default has
occurred and is continuing.



 26
 









(f)            Seller shall be
entitled to terminate a Transaction on demand and repurchase the Purchased
Asset subject to a Transaction on any Business Day prior to the Repurchase Date
(an “Early Repurchase Date”);
provided, however, that:


(i)            Seller notifies
Buyer in writing of its intent to terminate such Transaction and repurchase
such Purchased Assets no later than one (1) Business Day prior to such Early
Repurchase Date,


(ii)           on such Early
Repurchase Date, Seller pays to Buyer an amount equal to the sum of the
Repurchase Price for the applicable Purchased Asset and any other amounts
payable under this Agreement (including, without limitation, Article 3(i)
of this Agreement) with respect to such Purchased Asset against transfer to
Seller or its agent of such Purchased Assets and any related Hedging
Transactions;


(iii)          on such Early
Repurchase Date, in addition to the amounts set forth in subclause (ii) above,
Seller pays to Buyer, on account of a Purchased Asset then subject to a
Transaction, an amount sufficient to reduce the Purchase Price for such
Purchased Asset to an amount equal to the Target Price for such Purchased
Asset.


Such notice shall set forth the Early Repurchase Date and shall
identify with particularity the Purchased Asset to be repurchased on such Early
Repurchase Date.


(g)           On the Termination
Date for any Transaction, termination of the Transaction will be effected by
transfer to Seller or its agent of the Purchased Assets being repurchased and
any Income in respect thereof received by Buyer (and not previously credited or
transferred to, or applied to the obligations of, Seller pursuant to Article
5 of this Agreement) against the simultaneous transfer of the Repurchase
Price to an account of Buyer. 
Notwithstanding the foregoing, provided that all of the extension
conditions listed in clauses (i) through (iv) of this Article 3(g) (collectively,
the “Termination Date Extension Conditions”) shall have been satisfied,
Seller may request to extend such Termination Date by no more than 364 days
from the date of such extension request by giving written notice to Buyer of
such request.  Any failure by Buyer to
deliver to Seller an objection in writing within thirty (30) days of such
request shall be deemed to be Buyer’s consent to extend such Termination
Date.  Notwithstanding the foregoing, in
no event shall the Termination Date be extended beyond the Maturity Date.  For purposes of the preceding sentence, the
Termination Date Extension Conditions shall be deemed to have been satisfied
if:


(i)            Seller shall have
given Buyer written notice, not less than thirty (30) days prior but no more
than one hundred and eighty (180) days prior to the originally scheduled
Termination Date, of Seller’s desire to extend the Termination Date; provided,
that if Seller fails to give such notice, Seller shall be deemed to have
notified Buyer of its desire to extend the Termination Date;


(ii)           no Material Adverse
Effect, Margin Deficit, Default or Event of Default under this Agreement shall
have occurred and be continuing as of the date notice is given under subclause
(i) above or as of the originally scheduled Termination Date and no “Termination
Event,” “Event of Default” or “Potential Event of Default” or any similar



 27
 









event by Seller, however denominated, shall have occurred and be
continuing under any Hedging Transaction;


(iii)          all representations
and warranties (other than the representations or warranties set forth in Article
10(b)(x)(D)) shall be true, correct, complete and accurate in all material
respects and there are no Material Breaches of the representations or
warranties set forth in Article 10(b)(x)(D)); and


(iv)          on the originally
scheduled Termination Date, Seller pays to Buyer, on account of each Purchased
Asset, an amount sufficient to reduce the Repurchase Price for each Purchased
Asset to an amount equal to the applicable Advance Rate used to calculate the
Purchase Price of such Purchased Asset multiplied by the Market Value for each
such Purchased Asset then subject to a Transaction.


(h)           If prior to the
first day of any Pricing Rate Period with respect to any Transaction, (i) Buyer
shall have determined in the exercise of its reasonable business judgment
(which determination shall be conclusive and binding upon Seller) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the LIBO Rate for such Pricing Rate Period,
or (ii) the LIBO Rate determined or to be determined for such Pricing Rate
Period will not adequately and fairly reflect the cost to Buyer (as determined
and certified by Buyer) of making or maintaining Transactions during such
Pricing Rate Period, Buyer shall give telecopy or telephonic notice thereof to
Seller as soon as practicable thereafter. 
If such notice is given, the Pricing Rate with respect to such
Transaction for such Pricing Rate Period, and for any subsequent Pricing Rate
Periods until such notice has been withdrawn by Buyer, shall be a per annum
rate equal to the Federal Funds Rate plus the Applicable Spread (the “Alternative Rate”).


(i)            Notwithstanding any
other provision herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof shall make it unlawful for
Buyer to enter into or maintain Transactions as contemplated by the Transaction
Documents, (a) the commitment of Buyer hereunder to enter into new Transactions
and to continue Transactions as such shall forthwith be canceled, and (b) the
Transactions then outstanding shall be converted automatically to Alternative
Rate Transactions on the last day of the then current Pricing Rate Period or
within such earlier period as may be required by law.


(j)            Upon demand by
Buyer, Seller shall indemnify Buyer and hold Buyer harmless from any loss, cost
or expense (including, without limitation, attorneys’ fees and disbursements)
that Buyer may sustain or incur as a consequence of (i) Buyer’s enforcement of
the terms of any of the Transaction Documents, (ii) any actions taken to
perfect or continue any lien created under any Transaction Documents, and/or
(iii) Buyer entering into any of the Transaction Documents or owning any asset
that is the subject of any of the Transaction Documents.  A certificate as to such costs, losses,
damages and expenses, setting forth the calculations therefor shall be
submitted promptly by Buyer to Seller and shall be prima facie evidence of the
information set forth therein.


(k)           If the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof by any Governmental Authority or compliance by Buyer



 28
 









with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority having jurisdiction over Buyer made
subsequent to the date hereof:


(i)            shall subject Buyer
to any tax of any kind whatsoever with respect to the Transaction Documents,
any Purchased Asset or any Transaction, or change the basis of taxation of
payments to Buyer in respect thereof (except for income taxes and any changes
in the rate of tax on Buyer’s overall net income);


(ii)           shall impose,
modify or hold applicable any reserve, special deposit, compulsory loan or
similar requirement against assets held by, deposits or other liabilities in or
for the account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of Buyer that is not otherwise included
in the determination of the LIBO Rate hereunder; or


(iii)          shall impose on
Buyer any other condition;


and the result of any of the foregoing is to increase the cost to
Buyer, by an amount that Buyer deems, in the exercise of its reasonable
business judgment, to be material, of entering into, continuing or maintaining
Transactions or to reduce any amount receivable under the Transaction Documents
in respect thereof; then, in any such case, Seller shall promptly pay Buyer,
upon its demand, any additional amounts necessary to compensate Buyer for such
increased cost or reduced amount receivable. 
If Buyer becomes entitled to claim any additional amounts pursuant to
this Article 3(k), it shall, within ten (10) Business Days of such
event, notify Seller of the event by reason of which it has become so
entitled.  Such notification as to the
calculation of any additional amounts payable pursuant to this subsection shall
be submitted by Buyer to Seller and shall be prima facie evidence of such
additional amounts.  This covenant shall
survive the termination of this Agreement and the repurchase by Seller of any
or all of the Purchased Assets.


(l)            If Buyer shall have
determined that the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof or
compliance by Buyer or any corporation controlling Buyer with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on Buyer’s or such
corporation’s capital as a consequence of its obligations hereunder to a level
below that which Buyer or such corporation could have achieved but for such
adoption, change or compliance (taking into consideration Buyer’s or such
corporation’s policies with respect to capital adequacy) by an amount deemed by
Buyer, in the exercise of its reasonable business judgment, to be material,
then from time to time, after submission by Buyer to Seller of a written
request therefor, Seller shall pay to Buyer such additional amount or amounts
as will compensate Buyer for such reduction. 
Such notification as to the calculation of any additional amounts
payable pursuant to this subsection shall be submitted by Buyer to Seller and
shall be prima facie evidence of such additional amounts.  This covenant shall survive the termination
of this Agreement and the repurchase by Seller of any or all of the Purchased
Assets.



 29
 









(m)          Upon written request
of Seller delivered to Buyer at least forty-five (45 ) days, but in no event
earlier than one-hundred and twenty (120) days, prior to the then current
Maturity Date, and so long as no Margin Deficit, Default or Event of Default
and no event which has a Material Adverse Effect shall have occurred and be
continuing on the then current Maturity Date, Buyer may in its sole discretion
agree to extend the Maturity Date, for a period not to exceed 364 additional
days (the “Extension Period”) by giving notice to Seller of such
extension and of the new Maturity Date determined by Buyer; provided, that any
failure by Buyer to deliver such notice of extension to Seller within thirty
(30) days from the date first received by Buyer shall be deemed to be Buyer’s
determination not to extend the Maturity Date. 
In no event shall the Maturity Date be extended for more than two (2)
Extension Periods.  Notwithstanding any
other provision of this Article 3(m) or otherwise herein, neither Buyer
nor any of its Affiliates shall be under any obligation to extend the original
Maturity Date, as the same may have been extended pursuant to this Article
3(m) hereof, or increase the Facility Amount.  In addition, no such Maturity Date extension
shall take effect unless and until Buyer shall have received payment from
Seller, as consideration for Buyer’s agreement to extend the then-current
Maturity Date, of an extension structuring fee in an amount equal to sixteen
and one-half (16.5) basis points (0.165%) multiplied by the then-current
Facility Amount (the “Extension Structuring Fee”), such amount to be
paid to Buyer in U.S. Dollars, in immediately available funds, without
deduction, set-off or counterclaim.


(n)           The Facility Amount
may be permanently reduced from time to time at the election of Seller by an
amount (the “Reduction Amount”) determined by Seller upon thirty (30)
days advance written notice to the Buyer; provided, that (i) any such
reduction shall be in increments of $50,000,000, (ii) no Default or Event of
Default shall have occurred, be continuing, or exist immediately after giving
effect to any such reduction, and (iii) no Margin Deficit shall exist before or
immediately after giving effect to any such reduction (and to any payments made
contemporaneously therewith).  In the
event of such a reduction, Buyer shall promptly remit to Seller an amount equal
to the product of (x) the Structuring Fee and/or the Extension Structuring Fee,
as appropriate, (y) the ratio of (A) the number of days remaining until the
immediately succeeding Maturity Date over (B) 364, and (z) the Reduction
Amount.


ARTICLE
4.

MARGIN MAINTENANCE


(a)           If at any time the
Buyer’s Margin Amount for all Purchased Assets is less than the Repurchase
Price for all Purchased Assets (a “Margin Deficit”), then Buyer may by
notice to Seller in the form of Exhibit XII (a “Margin Deficit Notice”)
require Seller to, at Seller’s option, no later than three (3) Business Days
following the receipt of a Margin Deficit Notice (the “Margin Deadline”)
to the extent such Margin Deficit equals or exceeds the Minimum Transfer
Amount, (i) transfer to Buyer for no additional consideration (by transfer to
Buyer or its designee (including the Custodian) Additional Eligible Collateral,
(ii) repurchase some or all of the Purchased Assets at their respective
Repurchase Prices, (iii) make a payment (subject to the requirements with
respect to termination set forth in Article 3 hereof) in reduction of
the Purchase Price, or (iv) choose any combination of the foregoing, such that,
after giving effect to such transfers, repurchases and payments, Buyer’s Margin
Amount for each Purchased Asset,



 30
 









considered individually, shall be equal to or greater than the
Repurchase Price for such Purchased Asset.


(b)           The failure of
Buyer, on any one or more occasions, to exercise its rights hereunder, shall
not change or alter the terms and conditions to which this Agreement is subject
or limit the right of Buyer to do so at a later date.  Seller and Buyer each agree that a failure or
delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s
rights under this Agreement or otherwise existing by law or in any way create
additional rights for Seller.


ARTICLE
5.

INCOME PAYMENTS AND PRINCIPAL PAYMENTS


(a)           The Cash Management
Account shall be established at the Depository pursuant to the Control
Agreement concurrently with the execution and delivery of this Agreement by
Seller and Buyer.  Buyer shall have sole
dominion and control over the Cash Management Account, which shall be subject to
the Control Agreement.  All Income in
respect of the Purchased Assets and any payments made to Seller in respect of
associated Hedging Transactions, as well as any interest received from the
reinvestment of such Income, shall be deposited directly into the Cash
Management Account and shall be remitted by the Depository in accordance with
the applicable provisions of Articles 5(b), 5(c), 5(d),
5(e), 5(f), and 5(g) of this Agreement.


(b)           With respect to
Purchased Assets, each Mortgagor, issuer of a participation, servicer and
trustee with respect to the Purchased Asset or borrower under a Purchased Asset
shall have previously received from Seller an irrevocable direction letter,
instructing, as applicable, the Mortgagor, issuer of a participation, servicer or
trustee with respect to the Purchased Asset or borrower to pay all amounts
payable under the related Purchased Asset to Servicer pursuant to the Servicing
Agreement, for immediate deposit by Servicer into the Cash Management Account
pursuant to the Servicing Agreement.  If
a Mortgagor, issuer of a participation, servicer or trustee with respect to the
Purchased Asset or borrower forwards any Income with respect to a Purchased
Asset to Seller or any Affiliate of Seller rather than directly to Servicer, Seller
shall, or shall cause such Affiliate to, (i) deliver an additional
irrevocable direction letter to the applicable Mortgagor, issuer of a
participation, servicer or trustee with respect to the Purchased Asset or
borrower and make other best efforts to cause such Mortgagor, issuer of a
participation, servicer or trustee with respect to the Purchased Asset or
borrower to forward such amounts directly to Servicer and (ii) immediately
deposit in the Cash Management Account any such amounts.


(c)           So long as no Event
of Default or CF Sweep Event with respect to any Purchased Asset shall have
occurred and be continuing, all Income received by the Depository in respect of
the Purchased Assets (other than scheduled or unscheduled Principal Payments
and net sale proceeds) and the associated Hedging Transactions during each
Collection Period shall be applied by the Depository on the related Remittance
Date in the following order of priority:


(i)            first, pro rata, (i) to Buyer, an amount equal to the Price
Differential that has accrued and is outstanding as of such Remittance Date and
(ii) to any Affiliated Hedge Counterparty, any amount then due and payable to
an Affiliated Hedge Counterparty under any Hedging Transaction related to a
Purchased Asset;



 31
 









(ii)           second, to Buyer, an amount equal to any other amounts due
and owing to Buyer or its Affiliates under any Transaction Document; and


(iii)          third, to Seller, the remainder, if any.


(d)           So long as no Event
of Default or CF Sweep Event shall have occurred and be continuing, any
unscheduled Principal Payments and any Principal Payment due on the maturity
date of a Purchased Asset shall be applied by the Depository on the Business
Day next following the Business Day on which such funds are deposited in the
Cash Management Account in the following order of priority:


(i)            first, pro rata, to Buyer, until the
Purchase Price for such Purchased Asset has been reduced to the Target Price
for such Purchased Asset as of the date of such payment (as determined by Buyer
after giving effect to such Principal Payment and application of net sales
proceeds, if applicable) and, solely with respect to any Hedging Transaction
with an Affiliated Hedge Counterparty related to such Purchased Asset, an
amount equal to any accrued and unpaid breakage costs under such Hedging
Transaction related to such Purchased Asset;


(ii)           second, to Buyer, until the related
Purchase Price for any other Purchased Asset as to which the Repurchase Price
exceeds the Target Price (for this purpose, making such payment in the order of
those Purchased Assets with the largest to smallest excess of Repurchase Price
over Target Price), until the aggregate Repurchase Price for all of such
Purchased Assets has been reduced to the aggregate Target Price for all of the
Purchased Assets, respectively as of the date of such payment (as determined by
Buyer after giving effect to such Principal Payment and application of net sale
proceeds, if applicable);


(iii)          third, to make payment to Buyer of any other amounts due and
owing to Buyer or its Affiliates under any Transaction Document; and


(iv)          fourth,
to Seller, the remainder of such Principal Payments or net sale proceeds, if
applicable.


(e)           So long as no Event
of Default or CF Sweep Event shall have occurred and be continuing, any scheduled
Principal Payments and any net sale proceeds in excess of the related
Repurchase Price in respect of any Purchased Assets that is a portion of the
Income received by the Depository during each Collection Period shall be
applied by the Depository on the Remittance Date in the following order of
priority:


(i)            first, pro rata, to Buyer, until the
Purchase Price for such Purchased Asset has been reduced to the Target Price
for such Purchased Asset as of the date of such payment (as determined by Buyer
after giving effect to such Principal Payment and application of net sales
proceeds, if applicable) and, solely with respect to any Hedging Transaction
with an Affiliated Hedge Counterparty related to such Purchased Asset, an
amount equal to any accrued and unpaid breakage costs under such Hedging
Transaction related to such Purchased Asset;



 32
 









(ii)           second, to Buyer, until the related
Purchase Price for any other Purchased Asset as to which the Repurchase Price
exceeds the Target Price (for this purpose, making such payment in the order of
those Purchased Assets with the largest to smallest excess of Repurchase Price
over Target Price), until the aggregate Repurchase Price for all of such
Purchased Assets has been reduced to the aggregate Target Price for all of the
Purchased Assets, respectively as of the date of such payment (as determined by
Buyer after giving effect to such Principal Payment and application of net sale
proceeds, if applicable);


(iii)          third, to make payment to Buyer of any other amounts due and
owing to Buyer or its Affiliates under any Transaction Document; and


(iv)          fourth,
to Seller, the remainder of such Principal Payments or net sale proceeds, if
applicable.


(f)            If Buyer shall have
determined that a CF Sweep Event shall have occurred, but no Event of Default
shall have occurred and be continuing, all Income (excluding Principal Payments
and any net sale proceeds in excess of the related Repurchase Price) received
by the Depository in respect of the Purchased Assets and the associated Hedging
Transactions shall be applied by the Depository on the related Remittance Date
in the following order of priority:


(i)            first, pro rata, (i) to Buyer, an amount equal to the Price
Differential that has accrued and is outstanding in respect of all of the Purchased
Assets as of such Business Day and (ii) to any Affiliated Hedge Counterparty,
any amounts then due and payable to such Affiliated Hedge Counterparty under
any Hedging Transaction related to such Purchased Asset;


(ii)           second, to Buyer, an amount equal to the Repurchase Price of
each Purchased Asset until the Repurchase Price for such Purchased Asset has
been reduced to the Target Price for such Purchased Asset as of the date of
such payment (as determined by Buyer after giving effect to such Principal
Payment and application of net sale proceeds, if any);


(iii)          third, to Buyer, an amount equal to any other amounts due
and owing to Buyer or its Affiliates under any Transaction Document; and


(iv)          fourth,
to Seller, any remainder.


(g)           Upon the occurrence
and continuance of a CF Sweep Event, but no Event of Default shall have
occurred and be continuing, all Principal Payments and any net sale proceeds in
excess of the related Repurchase Price received by the Depository in respect of
the Purchased Assets and the associated Hedging Transactions shall be applied
by the Depository on the related Remittance Date in the following order of
priority:


(i)            first, pro rata, to Buyer, an amount equal to the Price
Differential that has accreted and is outstanding in respect of all of the
Purchased Assets as of such Business Day and any amounts then due and payable
to an Affiliated Hedge Counterparty under any Hedging Transaction related to
such Purchased Asset;



 33
 









(ii)           second, to Buyer, on account of the
Repurchase Price of each Purchased Asset until the Repurchase Price for such
Purchased Asset has been reduced to the Target Price for such Purchased Asset
as of the date of such payment (as determined by Buyer after giving effect to
such Principal Payment and application of net sale proceeds, if any);


(iii)          third, to Buyer, an amount equal to any other amounts due
and owing to Buyer or its Affiliates under any Transaction Document; and


(iv)          fourth,
to remit to Seller any remainder.


(h)           If an Event of
Default shall have occurred and be continuing, all Income received by the
Depository in respect of the Purchased Assets and the associated Hedging
Transactions shall be applied by the Depository on the Business Day next
following the Business Day on which such funds are deposited in the Cash
Management Account in the following order of priority:


(i)            first, pro rata, (i) to Buyer, an amount equal to the Price
Differential that has accrued and is outstanding in respect of all of the
Purchased Assets as of such Business Day and (ii) to any Affiliated Hedge
Counterparty, any amounts then due and payable to an Affiliated Hedge
Counterparty under any Hedging Transaction related to such Purchased Asset;


(ii)           second, to Buyer on account of the Repurchase Price of the
Purchased Assets until the Repurchase Price for all of the Purchased Assets has
been reduced to zero;


(iii)          third, to Buyer , an amount equal to any other amounts due
and owing to Buyer or its Affiliates under any Transaction Document; and


(iv)          fourth,
to remit to Seller any remainder.


ARTICLE
6.

SECURITY INTEREST


(a)           Buyer and Seller
intend that the Transactions hereunder be sales to Buyer of the Purchased
Assets and not loans from Buyer to Seller secured by the Purchased Assets.  However, in order to preserve Buyer’s rights under
this Agreement in the event that a court or other forum re-characterizes the
Transactions hereunder as loans and as security for the performance by Seller
of all of Seller’s obligations to Buyer under the Transaction Documents and the
Transactions entered into hereunder, or in the event that a transfer of a
Purchased Asset is otherwise ineffective to effect an outright transfer of such
Purchased Asset to Buyer, Seller hereby assigns, pledges and grants a security
interest in all of its right, title and interest in, to and under the Purchased
Items (as defined below) to Buyer to secure the payment of the Repurchase Price
on all Transactions to which it is a party and all other amounts owing by it to
Buyer hereunder, including, without limitation, amounts owing pursuant to Article
26, and under the other Transaction Documents, including any obligations of
Seller under any Hedging Transaction entered into with any Affiliated Hedge
Counterparty (including, without limitation,



 34
 









all amounts anticipated to be paid to Buyer by an Affiliated Hedge
Counterparty as provided for in the definition of Repurchase Price)
(collectively, the “Repurchase Obligations”).  Seller agrees to mark its computer records
and tapes to evidence the interests granted to Buyer hereunder.  All of Seller’s right, title and interest in,
to and under each of the following items of property, whether now owned or
hereafter acquired, now existing or hereafter created and wherever located, is
hereinafter referred to as the “Purchased Items”:


(i)            the Purchased
Assets and all “securities accounts” (as defined in Article 8-501(a)
of the UCC) to which any or all of the Purchased Assets are credited;


(ii)           any and all
Additional Eligible Collateral transferred to Buyer in accordance with Article
4(a);


(iii)          the Purchased Asset
Documents, Servicing Agreements, Servicing Records, insurance relating to the
Purchased Assets, and collection and escrow accounts and letters of credit
relating to the Purchased Assets;


(iv)          all “general
intangibles”, “accounts”, “chattel paper”, “investment property”, “instruments”
and “deposit accounts”, each as defined in the UCC, relating to or constituting
any and all of the foregoing; and


(v)           all replacements,
substitutions or distributions on or proceeds, payments, Income and profits of,
and records (but excluding any financial models or other proprietary
information) and files relating to any and all of any of the foregoing.


(b)           Without limiting Article
6(a) hereto, to secure payment of the Repurchase Obligations owing to Buyer,
Seller hereby grants to Buyer a security interest in all of Seller’s right,
title and interest in, to and under each of the following items of property,
whether now owned or hereafter acquired, now existing or hereafter created and
wherever located, hereinafter referred to as the “Collateral”:


(i)            the Cash Management
Account and all monies from time to time on deposit in the Cash Management
Account;


(ii)           the Purchased
Items;


(iii)          any and all
Additional Eligible Collateral transferred to Buyer in accordance with Article
4(a);


(iv)          any and all
replacements, substitutions, distributions on, income relating to or proceeds
of any and all of the foregoing; and


(v)           Seller’s right under
each Hedging Transaction, if any, relating to the Purchased Assets to secure
the Repurchase Obligations.


(c)           Buyer agrees to act
as agent for and on behalf of the Affiliated Hedge Counterparties with respect
to the security interest granted hereby to secure the obligations owing to the
Affiliated Hedge Counterparties under any Hedging Transactions, including,



 35
 









without limitation, with respect to the Purchased Assets and the
Purchased Asset Files held by the Custodian pursuant to the Custodial
Agreement.


(d)           Buyer’s security
interest in the Collateral and Purchased Items shall terminate only upon
termination of Seller’s obligations under this Agreement, all Hedging
Transactions and the documents delivered in connection herewith and
therewith.  Upon such termination, Buyer
shall deliver to Seller such UCC termination statements and other release
documents as may be commercially reasonable and return the Purchased Assets to
Seller and reconvey the Purchased Items to Seller and release its security
interest in the Collateral.  For purposes
of the grant of the security interest pursuant to this Article 6, this
Agreement shall be deemed to constitute a security agreement under the New York
Uniform Commercial Code (the “UCC”).  Buyer shall have all of the rights and may
exercise all of the remedies of a secured creditor under the UCC and the other
laws of the State of New York.  In
furtherance of the foregoing, (a) Buyer, at Seller’s sole cost and expense,
shall cause to be filed in such locations as may be necessary to perfect and
maintain perfection and priority of the security interest granted hereby, UCC
financing statements and continuation statements (collectively, the “Filings”), and shall
forward copies of such Filings to Seller upon completion thereof, and (b)
Seller shall from time to time take such further actions as may be requested by
Buyer to maintain and continue the perfection and priority of the security
interest granted hereby (including marking its records and files to evidence
the interests granted to Buyer hereunder).


ARTICLE
7.

PAYMENT, TRANSFER AND CUSTODY


(a)           On the Purchase Date
for each Transaction, ownership of the Purchased Asset shall be transferred to
Buyer or its designee (including the Custodian) against the simultaneous
transfer of the Purchase Price to an account of Seller specified in the
Confirmation relating to such Transaction.


(b)           On or before each
Purchase Date, Seller shall deliver or cause to be delivered to Buyer or its
designee the Custodial Delivery in the form attached hereto as Exhibit IV,
provided, that notwithstanding the foregoing, upon request of Seller,
Buyer in its sole but good faith discretion may elect to permit Seller to make
such delivery by not later than the third (3rd) Business Day after the related
Purchase Date, so long as Seller causes an Acceptable Attorney, Title Company
or other Person acceptable to Buyer to deliver to Buyer and the Custodian a
Bailee Letter on or prior to such Purchase Date.  Subject to Article 7(c), in connection
with each sale, transfer, conveyance and assignment of a Purchased Asset, on or
prior to each Purchase Date with respect to such Purchased Asset, Seller shall
deliver or cause to be delivered and released to the Custodian the following
original documents (collectively, the “Purchased Asset File”), pertaining to each of the
Purchased Assets identified in the Custodial Delivery delivered therewith,
together with any other documentation in respect of such Purchased Asset
requested by Buyer, in Buyer’s sole but good faith discretion:


With respect to each
Purchased Asset that is a Senior Mortgage Loan (to the extent that Seller is
the holder of the senior participation and is the custodian of the related loan
documents):


 



 36















(i)                                     The
original Mortgage Note (and if applicable, one or more allonges) bearing all
intervening endorsements, endorsed “Pay to the order of                  without
recourse” and signed in the name of the last endorsee (the “Last Endorsee”) by an
authorized Person (in the event that the Purchased Asset was acquired by the
Last Endorsee in a merger, the signature must be in the following form:  “[Last Endorsee], successor by merger to
[name of predecessor]”; in the event that the Purchased Asset was acquired or
originated by the Last Endorsee while doing business under another name, the
signature must be in the following form: 
“[Last Endorsee], formerly known as [previous name]”).


(ii)                                  An
original of any guarantee executed in connection with the Mortgage Note (if
any).


(iii)                               The original Mortgage
with evidence of recording thereon, or a copy thereof together with an officer’s
certificate of Seller certifying that such represents a true and correct copy
of the original and that such original has been submitted for recordation in
the appropriate governmental recording office of the jurisdiction where the
underlying real estate directly or indirectly securing or supporting such
Purchased Asset is located.


(iv)                              The
originals of all assumption, modification, consolidation or extension
agreements with evidence of recording thereon, or copies thereof together with
an officer’s certificate of Seller certifying that such represent true and
correct copies of the originals and that such originals have each been
submitted for recordation in the appropriate governmental recording office of
the jurisdiction where the underlying real estate directly or indirectly
securing or supporting such Purchased Asset is located.


(v)                                 The
original Assignment of Mortgage in blank for each Purchased Asset, in form and
substance acceptable for recording and otherwise acceptable to Buyer and signed
in the name of the Last Endorsee (in the event that the Purchased Asset was
acquired by the Last Endorsee in a merger, the signature must be in the
following form:  “[Last Endorsee],
successor by merger to [name of predecessor]”; in the event that the Purchased
Asset was acquired or originated while doing business under another name, the
signature must be in the following form: “[Last Endorsee], formerly known as
[previous name]”).


(vi)                              The
originals of all intervening assignments of mortgage with evidence of recording
thereon, or copies thereof together with an officer’s certificate of Seller
certifying that such represent true and correct copies of the originals and
that such originals have each been submitted for recordation in the appropriate
governmental recording office of the jurisdiction where the underlying real
estate directly or indirectly securing or supporting such Purchased Asset is
located.


(vii)                           The original attorney’s
opinion of title and abstract of title or the original mortgagee title
insurance policy, or if the original mortgagee title insurance policy has not
been issued, the irrevocable marked commitment to issue the same.



 37
 









(viii)                        The original of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Purchased Asset.


(ix)                                The
original assignment of leases and rents, if any, with evidence of recording
thereon, or a copy thereof together with an officer’s certificate of Seller,
certifying that such copy represents a true and correct copy of the original
and that such original has been submitted for recordation in the appropriate
governmental recording office of the jurisdiction where the underlying real
estate directly or indirectly securing or supporting such Purchased Asset is
located.


(x)                                   The
originals of all intervening assignments of assignment of leases and rents, if
any, or copies thereof, with evidence of recording thereon.


(xi)                                A
copy of the UCC financing statements, certified as true and correct by Seller,
and all necessary UCC continuation statements with evidence of filing thereon
or copies thereof certified by Seller that such financing statements have been
sent for filing, and UCC assignments, which UCC assignments shall be in form
and substance acceptable for filing.


(xii)                             An environmental indemnity
agreement (if any).


(xiii)                          An omnibus assignment in
blank (if any).


(xiv)                         A disbursement letter from the
Mortgagor to the original mortgagee (if any).


(xv)                            Mortgagor’s
certificate or title affidavit (if any).


(xvi)                         A survey of the underlying
real estate directly or indirectly securing or supporting such Purchased Asset
(if any) as accepted by the title company for issuance of the Title Policy.


(xvii)                      A copy of the Mortgagor’s opinion
of counsel (if any).


(xviii)                   An assignment of permits, contracts
and agreements (if any).


With respect to each Purchased Asset that is a Mezzanine Loan:


(i)                                     The
original Mezzanine Note (and if applicable, one or more allonges) signed in
connection with the Purchased Asset bearing all intervening endorsements,
endorsed “Pay to the order of                  
without recourse” and signed in the name of the Last Endorsee by an authorized
Person (in the event that the Mezzanine Note was acquired by the Last Endorsee
in a merger, the signature must be in the following form:  “[Last Endorsee], successor by merger to
[name of predecessor]”; in the event that the Purchased Asset was acquired or
originated by the Last Endorsee while doing business under another name, the
signature must be in the following form: 
“[Last Endorsee], formerly known as [previous name]”).



 38
 









(ii)                                  The
original of the loan agreement and the guarantee, if any, executed in
connection with the Purchased Asset.


(iii)                               The original
intercreditor or loan coordination agreement, if any, executed in connection
with the Purchased Asset.


(iv)                              The
original security agreement executed in connection with the Purchased Asset.


(v)                                 Copies
of all documents relating to the formation and organization of the borrower of
such Purchased Asset, together with all consents and resolutions delivered in
connection with such borrower’s obtaining the Purchased Asset.


(vi)                              All
other documents and instruments evidencing, guaranteeing, insuring or otherwise
constituting or modifying or otherwise affecting such Purchased Asset, or
otherwise executed or delivered in connection with, or otherwise relating to,
such Purchased Asset, including all documents establishing or implementing any lockbox
pursuant to which Seller is entitled to receive any payments from cash flow of
the underlying real property.


(vii)                           The assignment of Purchased
Asset sufficient to transfer to Buyer all of Seller’s rights, title and
interest in and to the Purchased Asset.


(viii)                        A copy of the borrower’s
opinion of counsel (if any).


(ix)                                A
copy of the UCC financing statements, certified as true and correct by Seller,
and all necessary UCC continuation statements with evidence of filing thereon
or copies thereof certified by Seller that such financing statements have been
sent for filing, and UCC assignments, which UCC assignments shall be in form
and substance acceptable for filing.


(x)                                   The
original certificates representing the pledged equity interests (if any).


(xi)                                Stock
powers (or their equivalent) relating to each pledged equity interest, executed
in blank, if an original stock certificate (or its equivalent) is provided.


(xii)                             Assignment of any
agreements among equity interest holders or other material contracts.


(xiii)                          If no original stock
certificate (or its equivalent) is provided, evidence (which may be an officer’s
certificate confirming such circumstances) that the pledged ownership interests
have been transferred to, or otherwise made subject to a first priority
security interest in favor of, Seller.


With respect to each Purchased Asset that is a Junior Interest:


(i)                                     with
respect to a B-Note, the original Mortgage Note and guarantee, if any,
described in the second paragraph of this Article 7(b), and with respect
to a B-Note 



 39
 









or a junior participation interest, to the extent applicable, a copy of
all of the documents described in clauses (iii), (iv), (vii), (viii), (ix),
(x), (xi), (xii), (xiii), (xiv), (xv), (xvi), (xvii) and (xviii) of the second
paragraph of this Article 7(b) with respect to a Purchased Asset;


(ii)                                  with
respect to a junior participation, the original participation certificate, if
any, together with the original of any participation agreement, intercreditor
agreement and/or servicing agreement executed in connection with the Purchased
Asset; and


(iii)                               the assignment of
Purchased Asset, in blank, sufficient to transfer to Buyer all of Seller’s
rights, title and interest in and to the Purchased Asset.


With respect to each Purchased Asset that is a CMBS:


(i)                                     With
respect to (A) any CMBS that is in physical form, the original certificate,
bond or other physical form of such CMBS, which shall (1) be endorsed
(either on the face thereof or pursuant to a separate allonge) by the most
recent endorsee prior to Seller, without recourse, to the order of Seller and
further reflect a complete, unbroken chain of endorsement from the originator
to Seller and (2) be accompanied by a separate allonge pursuant to which
Seller has endorsed such certificate, without recourse, in blank, or, (B) with
respect to any CMBS registered with DTC, evidence of re-registration to the
securities intermediary in Buyer’s name, denoting same with a “repo” code;


(ii)                                  to
the extent in Seller’s possession or reasonably obtainable by Seller, true and
correct copies of the pooling and servicing agreement or indenture and all
other material documents (including, without limitation, opinions of counsel)
or agreements related to the creation or issuance of the CMBS or otherwise
affecting the rights (including, without limitation, the security interests) of
any holder thereof;


(iii)                               to the extent in Seller’s
possession, as applicable, true and correct copies of any assignment,
assumption, modification, consolidation or extension made prior to the Purchase
Date in respect of any document or agreement referred to in clause (ii) above,
in each case, if the document or agreement being assigned, assumed, modified,
consolidated or extended is recordable, with evidence of recording thereon
(unless the particular item has not been returned from the applicable recording
office);


(iv)                              as
applicable, an original assignment of each agreement referred to in clause
(iii) above, in recordable form if the agreement being assigned is a recordable
document, executed in blank by Seller;


(v)                                 with
respect to any CMBS that is in physical form, a blank endorsement which, when
properly completed and delivered, is sufficient to cause Buyer to become the
registered holder of the CMBS; and


(vi)                              any
other documents that Buyer may reasonably request Seller to deliver to
Custodian from time to time with respect to any CMBS.



 40
 









With respect to each Purchased Asset that is a CRE CDO:


(i)                                     With
respect to any (A) CRE CDO that is in physical form, the original certificate,
bond or other physical form of such CRE CDO, which shall (1) be endorsed
(either on the face thereof or pursuant to a separate allonge) by the most
recent endorsee prior to Seller, without recourse, to the order of Seller and
further reflect a complete, unbroken chain of endorsement from the originator
to Seller and (2) be accompanied by a separate allonge pursuant to which
Seller has endorsed such certificate, without recourse, in blank, or, (B) with
respect to any CRE CDO registered with DTC, evidence of re-registration to the
securities intermediary in Buyer’s name denoting same with a “repo” code;


(ii)                                  to
the extent in Seller’s possession or obtainable by Seller, true and correct
copies of the indenture and all other material documents (including, without
limitation, opinions of counsel) or agreements related to the creation or
issuance of the CRE CDO or otherwise affecting the rights (including, without
limitation, the security interests) of any holder thereof;


(iii)                               to the extent in Seller’s
possession, as applicable, true and correct copies of any assignment,
assumption, modification, consolidation or extension made prior to the Purchase
Date in respect of any document or agreement referred to in clause (ii) above,
in each case, if the document or agreement being assigned, assumed, modified,
consolidated or extended is recordable, with evidence of recording thereon
(unless the particular item has not been returned from the applicable recording
office);


(iv)                              as
applicable, an original assignment of each agreement referred to in clause
(iii) above, in recordable form if the agreement being assigned is a recordable
document, executed in blank by Seller;


(v)                                 with
respect to any CRE CDO that is in physical form, a blank endorsement which,
when properly completed and delivered, is sufficient to cause Buyer to become
the registered holder of the CRE CDO; and


(vi)                              any
other documents that Buyer may reasonably request Seller to deliver to
Custodian from time to time with respect to any CRE CDO.


With respect to
each Purchased Asset that is of the type described in clause (viii) of the
definition of Eligible Asset:  any of the
documentation referred to above in this Article 7(b) or other
documentation with respect to such Eligible Asset that is determined by Buyer
to be necessary to effectuate the sale, transfer, conveyance and assignment of
such Eligible Asset.


From time to time,
Seller shall forward to the Custodian additional original documents or
additional documents evidencing any assumption, modification, consolidation or
extension of a Purchased Asset approved in accordance with the terms of this
Agreement, and upon receipt of any such other documents, the Custodian shall
hold such other documents as Buyer shall request from time to time.  With respect to any documents that have been
delivered or are being delivered to recording offices for recording and have
not been returned to Seller in time to permit their delivery hereunder at the
time required, in lieu of delivering such original documents, Seller 



 41
 









shall deliver to Buyer a
true copy thereof with an officer’s certificate certifying that such copy is a
true, correct and complete copy of the original, which has been transmitted for
recordation.  Seller shall deliver such
original documents to the Custodian promptly when they are received.  With respect to all of the Purchased Assets
delivered by Seller to Buyer or its designee (including the Custodian), Seller
shall execute an omnibus power of attorney substantially in the form of Exhibit
V attached hereto irrevocably appointing Buyer its attorney-in-fact
with full power to (i) complete and record each Assignment of Mortgage,
(ii) complete the endorsement of each Mortgage Note or Mezzanine Note, (iii)
take any action (including exercising voting and/or consent rights) with
respect to CMBS, Junior Interests, or intercreditor or participation
agreements, and (iv) take such other steps as may be necessary or desirable to
enforce Buyer’s rights against, under or with respect to such Purchased Assets
and the related Purchased Asset Files and the Servicing Records.  Buyer shall deposit the Purchased Asset Files
representing the Purchased Assets, or direct that the Purchased Asset Files be
deposited directly, with the Custodian. 
The Purchased Asset Files shall be maintained in accordance with the
Custodial Agreement.  Any Purchased Asset
Files not delivered to Buyer or its designee (including the Custodian) are and
shall be held in trust by Seller or its designee for the benefit of Buyer as
the owner thereof.  Seller or its designee
shall maintain a copy of the Purchased Asset File and the originals of the
Purchased Asset File not delivered to Buyer or its designee.  The possession of the Purchased Asset File by
Seller or its designee is at the will of Buyer for the sole purpose of
servicing the related Purchased Asset, and such retention and possession by
Seller or its designee is in a custodial capacity only.  The books and records (including, without
limitation, any computer records or tapes) of Seller or its designee shall be marked
appropriately to reflect clearly the sale of the related Purchased Asset to
Buyer.  Seller or its designee (including
the Custodian) shall release its custody of the Purchased Asset File only in
accordance with written instructions from Buyer, unless such release is
required as incidental to the servicing of the Purchased Assets, is in
connection with a repurchase of any Purchased Asset by Seller or as otherwise
required by law.


(c)                                  Unless
an Event of Default shall have occurred and be continuing, Seller shall
exercise all voting and corporate rights with respect to the Purchased Assets
in accordance with Seller’s written instructions; provided, however,
that Seller shall provide Buyer with prior written notice of each such action
that may have a material adverse effect on any Purchased Asset.  Upon the occurrence and during the
continuation of an Event of Default, Buyer shall be entitled to exercise all
voting and corporate rights with respect to the Purchased Assets without regard
to Seller’s instructions (including, but not limited to, if an Act of
Insolvency shall occur with respect to Seller, to the extent Seller controls or
is entitled to control selection of any servicer, Buyer may transfer any or all
of such servicing to an entity satisfactory to Buyer).


(d)                                 Notwithstanding
the provisions of Article 7(b) above requiring the execution of the
Custodial Delivery and corresponding delivery of the Purchased Asset File to
the Custodian on or prior to the related Purchase Date, with respect to each
Transaction involving a Purchased Asset that is identified in the related
Confirmation as a “Table Funded” Transaction, Seller shall, in lieu of
effectuating the delivery of all or a portion of the Purchased Asset File on or
prior to the related Purchase Date, (i) deliver to the Custodian by facsimile
on or before the related Purchase Date for the Transaction (A) the promissory
note(s), original stock certificate or participation certificate in favor of
Seller evidencing the making of the Purchased Asset, with Seller’s endorsement
of such instrument to Buyer, (B) such other components of the Purchased 



 42
 









Asset File as Buyer may
require on a case by case basis with respect to the particular Transaction, and
(C) evidence satisfactory to Buyer that all documents necessary to perfect
Seller’s (and, by means of assignment to Buyer on the Purchase Date, Buyer’s)
interest in the Collateral for the Purchased Asset, and (ii) not later than the
third (3rd) Business Day following the Purchase Date, deliver to Buyer the
Custodial Delivery and to the Custodian the entire Purchased Asset File.


ARTICLE
8.


SALE,
TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS


(a)                                  Title
to all Purchased Assets shall pass to Buyer on the applicable Purchase Date,
and Buyer shall have free and unrestricted use of all Purchased Assets,
subject, however, to the terms of this Agreement.  Nothing in this Agreement or any other
Transaction Document shall preclude Buyer from engaging in repurchase
transactions with the Purchased Assets or otherwise selling, transferring,
pledging, repledging, hypothecating, or rehypothecating the Purchased Assets,
but no such transaction shall relieve Buyer of its obligations to transfer the
Purchased Assets to Seller pursuant to Article 3 of this Agreement or of
Buyer’s obligation to credit or pay Income to, or apply Income to the
obligations of, Seller pursuant to Article 5 hereof.


(b)                                 Nothing
contained in this Agreement or any other Transaction Document shall obligate
Buyer to segregate any Purchased Assets delivered to Buyer by Seller.  Notwithstanding anything to the contrary in
this Agreement or any other Transaction Document, no Purchased Asset shall
remain in the custody of Seller or an Affiliate of Seller.


ARTICLE 9.


RESERVED


ARTICLE
10.


REPRESENTATIONS
AND WARRANTIES


(a)                                  Each
of Buyer and Seller represent and warrant to the other that (i) it is duly
authorized to execute and deliver this Agreement, to enter into Transactions
contemplated hereunder and to perform its obligations hereunder and has taken
all necessary action to authorize such execution, delivery and performance,
(ii) it will engage in such Transactions as principal (or, if agreed in
writing, in the form of an annex hereto or otherwise, in advance of any
Transaction by the other party hereto, as agent for a disclosed principal),
(iii) the person signing this Agreement on its behalf is duly authorized to do
so on its behalf (or on behalf of any such disclosed principal), (iv) it has
obtained all authorizations of any governmental body required in connection
with this Agreement and the Transactions hereunder and such authorizations are
in full force and effect and (v) the execution, delivery and performance of
this Agreement and the Transactions hereunder will not violate any law,
ordinance or rule applicable to it or its organizational documents or any
agreement by which it is bound or by which any of its assets are affected.  On the Purchase Date for any Transaction,
Buyer and Seller shall each be deemed to repeat all the foregoing
representations made by it.



 43
 









(b)                                 In
addition to the representations and warranties in subsection (a) above, Seller
represents and warrants to Buyer as of the date of this Agreement and will be
deemed to represent and warrant to Buyer as of the Purchase Date for the
purchase of any Purchased Assets by Buyer from Seller and any Transaction
thereunder and covenants that at all times while this Agreement and any
Transaction thereunder is in effect, unless otherwise stated herein:


(i)                                     Organization.  Seller is duly organized, validly existing
and in good standing under the laws and regulations of the state of Seller’s
incorporation and is duly licensed, qualified, and in good standing in every
state where such licensing or qualification is necessary for the transaction of
Seller’s business, except where failure to so qualify could not be reasonably
likely to have a Material Adverse Effect. 
Seller has the power to own and hold the assets it purports to own and
hold, and to carry on its business as now being conducted and proposed to be
conducted, and has the power to execute, deliver, and perform its obligations
under this Agreement and the other Transaction Documents.


(ii)                                  Due
Execution; Enforceability.  The
Transaction Documents have been or will be duly executed and delivered by Seller,
for good and valuable consideration.  The
Transaction Documents constitute the legal, valid and binding obligations of
Seller, enforceable against Seller in accordance with their respective terms
subject to bankruptcy, insolvency, and other limitations on creditors’ rights
generally and to equitable principles.


(iii)                               Ability to Perform.  Seller does not believe, nor does it have any
reason or cause to believe, that it cannot perform each and every covenant
contained in the Transaction Documents applicable to it to which it is a party.


(iv)                              Non-Contravention.  Neither the execution and delivery of the
Transaction Documents, nor consummation by Seller of the transactions
contemplated by the Transaction Documents (or any of them), nor compliance by
Seller with the terms, conditions and provisions of the Transaction Documents
(or any of them) will conflict with or result in a breach of any of the terms,
conditions or provisions of (i) the organizational documents of Seller, (ii)
any contractual obligation to which Seller is now a party or the rights under
which have been assigned to Seller or the obligations under which have been
assumed by Seller or to which the assets of Seller are subject or constitute a
default thereunder, or result thereunder in the creation or imposition of any
lien upon any of the assets of Seller, other than pursuant to the Transaction
Documents, (iii) any judgment or order, writ, injunction, decree or demand of
any court applicable to Seller, or (iv) any applicable Requirement of Law, in
the case of clauses (ii)-(iv) above, to the extent that such conflict or
breach would have a Material Adverse Effect upon Seller’s ability to perform
its obligations hereunder.


(v)                                 Litigation;
Requirements of Law.  As of the date
hereof and as of the Purchase Date for any Transaction hereunder, there is no
action, suit, proceeding, investigation, or arbitration pending or, to the best
knowledge of Seller, threatened against Seller or any of its assets, nor is
there any action, suit, proceeding, investigation, or arbitration pending or
threatened against Seller that may result in any Material 



 44
 









Adverse Effect.  Seller is in
compliance in all material respects with all Requirements of Law.  Seller is not in default in any material
respect with respect to any judgment, order, writ, injunction, decree, rule or
regulation of any arbitrator or Governmental Authority.


(vi)                              No
Broker.  Seller has not dealt with
any broker, investment banker, agent, or other Person (other than Buyer or an
Affiliate of Buyer) who may be entitled to any commission or compensation in
connection with the sale of Purchased Assets pursuant to any of the Transaction
Documents.


(vii)                           Good Title to Purchased
Assets.  Immediately prior to the
purchase of any Purchased Assets by Buyer from Seller, such Purchased Assets
are free and clear of any lien, encumbrance or impediment to transfer
(including any “adverse claim”
as defined in Article 8-102(a)(1) of the UCC), and Seller is the record
and beneficial owner of and has good and marketable title to and the right to
sell and transfer such Purchased Assets to Buyer and, upon transfer of such
Purchased Assets to Buyer, Buyer shall be the owner of such Purchased Assets
free of any adverse claim.  In the event the
related Transaction is recharacterized as a secured financing of the Purchased
Assets, the provisions of this Agreement are effective to create in favor of
the Buyer a valid security interest in all rights, title and interest of Seller
in, to and under the Purchased Assets and the Buyer shall have a valid,
perfected first priority security interest in the Purchased Assets (and without
limitation on the foregoing, the Buyer, as entitlement holder, shall have a “security
entitlement” to the Purchased Assets).


(viii)                        No Decline in Market Value; No
Defaults.  No Event of Default has
occurred or exists under or with respect to the Transaction Documents and
Seller is not aware of any post-Transaction facts or circumstances that are
reasonably likely to cause or have caused the Market Value of any Purchased
Asset to decline in value.


(ix)                                Authorized
Representatives.  The duly authorized
representatives of Seller are listed on, and true signatures of such authorized
representatives are set forth on, Exhibit II attached to this Agreement.


(x)                                   Representations
and Warranties Regarding Purchased Assets; Delivery of Purchased Asset File.


(A)                              As
of the date hereof, Seller has not assigned, pledged, or otherwise conveyed or
encumbered any Purchased Asset to any other Person, and immediately prior to
the sale of such Purchased Asset to Buyer, Seller was the sole owner of such
Purchased Asset and had good and marketable title thereto, free and clear of
all liens, in each case except for (1) liens to be released simultaneously with
the sale to Buyer hereunder and (2) liens granted by Seller in favor of the
counterparty to any Hedging Transaction, solely to the extent such liens are
expressly subordinate to the rights and interests of Buyer hereunder.


(B)                                The
provisions of this Agreement and the related Confirmation are effective to
either constitute a sale of Purchased Items to Buyer or to create in 



 45
 









favor of Buyer a legal, valid and enforceable security interest in all
right, title and interest of Seller in, to and under the Purchased Items.


(C)                                Upon
receipt by the Custodian of each Mortgage Note, Mezzanine Loan note, B-Note or
Junior Interest certificate, endorsed in blank by a duly authorized officer of
Seller, either a purchase shall have been completed by Buyer of such Mezzanine
Loan note, B-Note or Junior Interest certificate, as applicable, or Buyer shall
have a valid and fully perfected first priority security interest in all right,
title and interest of Seller in the Purchased Items described therein.


(D)                               Each
of the representations and warranties made in respect of the Purchased Assets
pursuant to Exhibit VI are true, complete and correct, except to the
extent disclosed in a Requested Exceptions Report.


(E)                                 Upon
the filing of financing statements on Form UCC-1 naming Buyer as “Secured
Party”, Seller as “Debtor” and describing the Purchased Items, in
the jurisdiction and recording office listed on Exhibit XIII attached
hereto, the security interests granted hereunder in that portion of the
Purchased Items which can be perfected by filing under the Uniform Commercial
Code will constitute fully perfected security interests under the Uniform
Commercial Code in all right, title and interest of Seller in, to and under
such Purchased Items.


(F)                                 Upon
execution and delivery of the Control Agreement, Buyer shall either be the
owner of, or have a valid and fully perfected first priority security interest
in, the “investment property” and all “deposit accounts” (each as defined in
the Uniform Commercial Code) comprising Purchased Items or any after-acquired
property related to such Purchased Items. 
Except to the extent disclosed in a Requested Exceptions Report, Seller
or its designee is in possession of a complete, true and accurate Purchased
Asset File with respect to each Purchased Asset, except for such documents the
originals of which have been delivered to the Custodian.


(xi)                                Adequate
Capitalization; No Fraudulent Transfer. 
Seller has, as of such Purchase Date, adequate capital for the normal
obligations foreseeable in a business of its size and character and in light of
its contemplated business operations. 
Seller is generally able to pay, and as of the date hereof is paying,
its debts as they come due.  Seller has
not become, or is presently, financially insolvent nor will Seller be made
insolvent by virtue of Seller’s execution of or performance under any of the
Transaction Documents within the meaning of the bankruptcy laws or the
insolvency laws of any jurisdiction. 
Seller has not entered into any Transaction Document or any Transaction
pursuant thereto in contemplation of insolvency or with intent to hinder, delay
or defraud any creditor.


(xii)                             No Conflicts or
Consents.  Neither the execution and
delivery of this Agreement and the other Transaction Documents by Seller, nor
the consummation of any of the transactions by it herein or therein
contemplated, nor compliance with the terms and provisions hereof or with the
terms and provisions thereof, will contravene or conflict with or result in the
creation or imposition of (or the obligation to create or impose) any 



 46
 









lien upon any of the property or assets of Seller pursuant to the terms
of any indenture, mortgage, deed of trust, or other agreement or instrument to
which Seller is a party or by which Seller may be bound, or to which Seller may
be subject, other than liens created pursuant to the Transaction
Documents.  No consent, approval,
authorization, or order of any third party is required in connection with the
execution and delivery by Seller of the Transaction Documents to which it is a
party or to consummate the transactions contemplated hereby or thereby which
has not already been obtained.


(xiii)                          Governmental Approvals.  No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority is required to authorize, or is
required in connection with, (i) the execution, delivery and
performance of any Transaction Document to which Seller is or will be a party,
(ii) the legality, validity, binding effect or enforceability of any such
Transaction Document against Seller or (iii) the consummation of the
transactions contemplated by this Agreement (other than the filing of certain
financing statements in respect of certain security interests).


(xiv)                         Organizational Documents.  Seller has delivered to Buyer certified
copies of its organization documents, together with all amendments thereto, if
any.


(xv)                            No
Encumbrances.  There are (i) no
outstanding rights, options, warrants or agreements on the part of Seller for a
purchase, sale or issuance, in connection with the Purchased Assets, (ii) no
agreements on the part of Seller to issue, sell or distribute the Purchased
Assets, and (iii) no obligations on the part of Seller (contingent or
otherwise) to purchase, redeem or otherwise acquire any securities or any
interest therein.


(xvi)                         Federal Regulations.  Seller is not required to register as an “investment
company,” or a company “controlled by an investment company,” within the
meaning of the Investment Company Act of 1940, as amended.  Seller is not a “holding company,” or a “subsidiary
company of a holding company,” or an “affiliate” of either a “holding company”
or a “subsidiary company of a holding company,” as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended.


(xvii)                      Taxes.  Seller has filed or caused to be filed all
tax returns that, to the knowledge of Seller, would be delinquent if they had
not been filed on or before the date hereof and has paid all taxes shown to be
due and payable on or before the date hereof on such returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it and any of its assets by any Governmental Authority
except for any such taxes as (A) are being appropriately contested in good
faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves have been provided in accordance with GAAP or (B) are de minimis in amount; no tax liens have been filed against
any of Seller’s assets and, no claims are being asserted with respect to any
such taxes, fees or other charges.


(xviii)                   Judgments/Bankruptcy.  Except as disclosed in writing to Buyer,
there are no judgments against Seller unsatisfied of record or docketed in any
court located in the 



 47
 









United States of America and no Act of Insolvency has ever occurred
with respect to Seller.


(xix)                           Solvency.  Neither the Transaction Documents nor any
Transaction thereunder are entered into in contemplation of insolvency or with
intent to hinder, delay or defraud any of Seller’s creditors.  The transfer of the Purchased Assets subject
hereto and the obligation to repurchase such Purchased Assets is not undertaken
with the intent to hinder, delay or defraud any of Seller’s creditors.  As of the Repurchase Date, Seller is not
insolvent within the meaning of 11 U.S.C. Section 101(32) or any successor
provision thereof and the transfer and sale of the Purchased Assets pursuant
hereto and the obligation to repurchase such Purchased Asset (i) will not cause
the liabilities of Seller to exceed the assets of Seller, (ii) will not result
in Seller having unreasonably small capital, and (iii) will not result in debts
that would be beyond Seller’s ability to pay as the same mature.  No petition in bankruptcy has been filed
against Seller in the last ten (10) years, and Seller has not in the last ten
(10) years made an assignment for the benefit of creditors or taken advantage
of any debtors relief laws.  Seller has
only entered into agreements on terms that would be considered arm’s length and
otherwise on terms consistent with other similar agreements with other
similarly situated entities.


(xx)                              Use
of Proceeds; Margin Regulations.  All
proceeds of each Transaction shall be used by Seller for purposes permitted under
Seller’s governing documents, provided that no part of the proceeds of
any Transaction will be used by Seller to purchase or carry any margin stock or
to extend credit to others for the purpose of purchasing or carrying any margin
stock.  Neither the entering into of any
Transaction nor the use of any proceeds thereof will violate, or be
inconsistent with, any provision of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.


(xxi)                           Full and Accurate
Disclosure.  No information contained
in the Transaction Documents, or any written statement furnished by or on
behalf of Seller pursuant to the terms of the Transaction Documents, contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading in
light of the circumstances under which they were made.


(xxii)                        Financial Information.  All financial data concerning Seller and the
Purchased Assets that has been delivered by or on behalf of Seller to Buyer is
true, complete and correct in all material respects.  All financial data concerning Seller has been
prepared fairly in accordance with GAAP. 
All financial data concerning the Purchased Assets has been prepared in
accordance with standard industry practices. 
Since the delivery of such data, except as otherwise disclosed in
writing to Buyer, there has been no change in the financial position of Seller
or the Purchased Assets, or in the results of operations of Seller, which
change is reasonably likely to have in a Material Adverse Effect on Seller.


(xxiii)                     Hedging Transactions.  To the actual knowledge of Seller, as of the
Purchase Date for any Purchased Asset that is subject to a Hedging Transaction,
each such Hedging Transaction is in full force and effect in accordance with
its terms, each 



 48
 









counterparty thereto is an Affiliated Hedge Counterparty or a Qualified
Hedge Counterparty, and no “Termination Event”, “Event of Default”, “Potential
Event of Default” or any similar event, however denominated, has occurred and
is continuing with respect thereto.


(xxiv)                    Servicing Agreements.  Seller has delivered to Buyer all Servicing
Agreements pertaining to the Purchased Assets and to the actual knowledge of
Seller, as of the date of this Agreement and as of the Purchase Date for the
purchase of any Purchased Assets subject to a Servicing Agreement, each such
Servicing Agreement is in full force and effect in accordance with its terms
and no default or event of default exists thereunder.


(xxv)                       No Reliance.  Seller has made its own independent decisions
to enter into the Transaction Documents and each Transaction and as to whether
such Transaction is appropriate and proper for it based upon its own judgment
and upon advice from such advisors (including without limitation, legal counsel
and accountants) as it has deemed necessary. 
Seller is not relying upon any advice from Buyer as to any aspect of the
Transactions, including without limitation, the legal, accounting or tax
treatment of such Transactions.


(xxvi)                    Patriot Act.  Seller is in compliance, in all material
respects, with the (i) the Trading with the Enemy Act, as amended, and each of
the foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) and any other applicable enabling
legislation or executive order relating thereto, and (ii) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA Patriot Act of 2001). 
No part of the proceeds of any Transaction will be used, directly or
indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.


(xxvii)                  
Environmental Matters.


(a)                                  No
properties owned or leased by Seller and no properties formerly owned or leased
by Seller, its predecessors, or any former Subsidiaries or predecessors thereof
(the “Properties”), contain, or have previously contained, any Materials
of Environmental Concern in amounts or concentrations which constitute or constituted
a violation of, or reasonably could be expected to give rise to liability
under, Environmental Laws;


(b)                                 Seller
is in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Laws which reasonably would be expected to
interfere with the continued operations of Seller;


(c)                                  Seller
has not received any notice of violation, alleged violation, non-compliance,
liability or potential liability under any Environmental 



 49
 









Law, nor does Seller have knowledge that any such notice will be
received or is being threatened;


(d)                                 Materials
of Environmental Concern have not been transported or disposed by Seller in
violation of, or in a manner or to a location which reasonably would be
expected to give rise to liability under, any applicable Environmental Law, nor
has Seller generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that reasonably would be expected to
give rise to liability under, any applicable Environmental Law;


(e)                                  No
judicial proceedings or governmental or administrative action is pending, or,
to the knowledge of Seller, threatened, under any Environmental Law which
Seller is or will be named as a party, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements arising out of judicial proceedings or
governmental or administrative actions, outstanding under any Environmental Law
to which Seller is a party;


(f)                                    There
has been no release or threat of release of Materials of Environmental Concern
in violation of or in amounts or in a manner that reasonably would be expected
to give rise to liability under any Environmental Law for which Seller may
become liable; and


(g)                                 Each
of the representations and warranties set forth in the preceding clauses (A)
through (F) is true and correct with respect to each parcel of real property
owned or operated by Seller.


(xxviii)              Insider.  Seller is not an “executive officer,” “director,”
or “person who directly or indirectly or acting through or in concert with one
or more persons owns, controls, or has the power to vote more than 10% of any
class of voting securities” (as those terms are defined in 12 U.S.C. § 375(b)
or in regulations promulgated pursuant thereto) of Buyer, of a bank holding
company of which Buyer is a Subsidiary, or of any Subsidiary, of a bank holding
company of which Buyer is a Subsidiary, of any bank at which Buyer maintains a
correspondent account or of any lender which maintains a correspondent account
with Buyer


(xxix)                      Office of Foreign Assets
Control.  Seller is not a person (i)
whose property or interest in property is blocked or subject to blocking
pursuant to Section 1 of Executive Order 13224 of September 23, 2001
Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) who
engages in any dealings or transactions prohibited by Section 2 of such
executive order, or to the best of Seller’s knowledge,  is otherwise associated with any such person
in any manner in violation of Section 2 of such executive order, or (iii)
on the current list of Specially Designated Nationals and Blocked Persons or subject
to the limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order.



 50















(xxx)        Notice Address; Jurisdiction of
Organization.  On the date of this
Agreement, Seller’s address for notices is as specified on Annex I.  Seller’s jurisdiction of organization is
Maryland.  The location where Seller
keeps its books and records, including all computer tapes and records relating
to the Collateral and Purchased Items, is its notice address.  Seller may change its address for notices and
for the location of its books and records by giving Buyer written notice of
such change.


ARTICLE
11.

NEGATIVE COVENANTS OF SELLER


On and as of the date
hereof and each Purchase Date and until this Agreement is no longer in force
with respect to any Transaction, Seller shall not without the prior written
consent of Buyer:


(a)           take
any action that would directly or indirectly impair or adversely affect Buyer’s
title to the Purchased Assets;


(b)           transfer,
assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose
of, or pledge or hypothecate, directly or indirectly, any interest in the
Purchased Assets (or any of them) to any Person other than Buyer, or engage in
repurchase transactions or similar transactions with respect to the Purchased
Assets (or any of them) with any Person other than Buyer;


(c)           modify
in any material adverse respect any Servicing Agreements;


(d)           create,
incur or permit to exist any lien, encumbrance or security interest in or on
any of the Purchased Assets, the other Collateral or Purchased Items, other
than the security interest granted by Seller pursuant to Article 6 of this
Agreement;


(e)           enter
into any transaction of merger or consolidation or amalgamation, that is likely
to have a material adverse effect on the creditworthiness or financial
condition of Seller, or liquidate, wind up or dissolve itself (or suffer any
liquidation, winding up or dissolution), sell all or substantially all of its
assets without the consent of Buyer in its sole and absolute discretion;


(f)            consent
or assent to any material amendment or supplement to, or termination of, any
note, loan agreement, mortgage or guarantee relating to the Purchased Assets or
other material agreement or instrument relating to the Purchased Assets other
than in accordance with Article 28;


(g)           acquire
or maintain any right or interest in any Purchased Asset or Underlying
Mortgaged Property that is senior to or pari passu with the rights and
interests of Buyer therein under this Agreement and the other Transaction
Documents unless such right or interest becomes a Purchased Asset hereunder ;


(h)           use
any part of the proceeds of any Transaction hereunder for any purpose which
violates, or would be inconsistent with, the provisions of Regulation T, U or X
of the Board of Governors of the Federal Reserve System;



 51
 









(i)            permit
Seller’s EBITDA to Fixed Charge Ratio as of the last day of any fiscal quarter
to be less than 1.20:1;


(j)            permit
Seller’s ratio of Total Indebtedness to Tangible Net Worth at any time to be
greater than 10.00:1.00;


(k)           permit
Seller’s ratio of Total Non-Securitized 
Indebtedness to Tangible Net Worth at any time to be greater than
5.00:1.00; or


(l)            enter
into any Hedging Transaction with respect to any Purchased Asset with any
entity that is not an Affiliated Hedging Counterparty or a Qualified Hedging
Counterparty.


ARTICLE
12.

AFFIRMATIVE COVENANTS OF SELLER


(a)           Seller
shall promptly notify Buyer of any material adverse change in its business
operations and/or financial condition; provided, however, that
nothing in this Article 12 shall relieve Seller of its obligations under
this Agreement.


(b)           Seller
shall provide Buyer with copies of such documents as Buyer may reasonably
request evidencing the truthfulness of the representations set forth in Article
10.


(c)           Seller
(1) shall defend the right, title and interest of Buyer in and to the
Collateral and Purchased Items against, and take such other action as is
necessary to remove, the Liens, security interests, claims and demands of all
Persons (other than security interests by or through Buyer) and (2) shall, at
Buyer’s reasonable request, take all action necessary to ensure that Buyer will
have a first priority security interest in the Purchased Assets subject to any
of the Transactions in the event such Transactions are recharacterized as
secured financings.


(d)           Seller shall notify Buyer and the Depository of the
occurrence of any Default or Event of Default with respect to Seller as soon as
possible but in no event later than the second (2nd) Business Day after
obtaining actual knowledge of such event.


(e)           Seller
shall cause the special servicer rating of the special servicer with respect to
all mortgage loans underlying Purchased Assets other than Seller itself to be
no lower than “average” by Standard & Poor’s Ratings Group to the extent
Seller controls or is entitled to control the selection of the special servicer.  In the event the special servicer rating with
respect to any Person acting as special servicer for any mortgage loans
underlying Purchased Assets other than Seller itself shall be below “average”
by Standard & Poor’s Rating Group, or if an Act of Insolvency occurs with
respect to Seller, Buyer shall be entitled to transfer special servicing with
respect to all Purchased Assets to an entity satisfactory to Buyer, to the
extent Seller controls or is entitled to control the selection of the special servicer.


(f)            Seller
shall promptly (and in any event not later than two (2) Business Days following
receipt) deliver to Buyer (i) any notice of the occurrence of an event of
default under or report received by Seller pursuant to the Purchased Asset
Documents; (ii) any notice of



 52
 









transfer of servicing under the Purchased Asset Documents and (iii) any
other information with respect to the Purchased Assets that may be requested by
Buyer from time to time.


(g)           Seller will permit Buyer or its designated representative
to inspect Seller’s records with respect to the Collateral and the Purchased
Items and the conduct and operation of its business related thereto upon
reasonable prior written notice from Buyer or its designated representative, at
such reasonable times and with reasonable frequency, and to make copies of
extracts of any and all thereof, subject to the terms of any confidentiality
agreement between Buyer and Seller. 
Buyer shall act in a commercially reasonable manner in requesting and
conducting any inspection relating to the conduct and operation of Seller’s
business.


(h)           If Seller shall at any time become entitled to receive or
shall receive any rights, whether in addition to, in substitution of, as a
conversion of, or in exchange for a Purchased Asset, or otherwise in respect
thereof, Seller shall accept the same as Buyer’s agent, hold the same in trust
for Buyer and deliver the same forthwith to Buyer in the exact form received,
duly endorsed by Seller to Buyer, if required, together with an undated bond
power covering such certificate duly executed in blank to be held by Buyer
hereunder as additional collateral security for the Transactions.  If any sums of money or property so paid or
distributed in respect of the Purchased Assets shall be received by Seller,
Seller shall, until such money or property is paid or delivered to Buyer, hold
such money or property in trust for Buyer, segregated from other funds of
Seller, as additional collateral security for the Transactions.


(i)            At any time from time to time upon the reasonable request
of Buyer, at the sole expense of Seller, Seller will promptly and duly execute
and deliver such further instruments and documents and take such further
actions as Buyer may request for the purposes of obtaining or preserving the
full benefits of this Agreement including the first priority security interest
granted hereunder and of the rights and powers herein granted (including, among
other things, filing such UCC financing statements as Buyer may request).  If any amount payable under or in connection
with any of the Collateral or Purchased Items shall be or become evidenced by
any promissory note, other instrument or chattel paper, such note, instrument
or chattel paper shall be immediately delivered to Buyer, duly endorsed in a
manner satisfactory to Buyer, to be itself held as a Purchased Item and/or
Collateral, as applicable, pursuant to this Agreement, and the documents
delivered in connection herewith.


(j)            Seller shall provide, or to cause to be provided, to
Buyer the following financial and reporting information:


(i)            Within
sixty (60) days after the last day of each of the first three fiscal quarters
in any fiscal year, consolidated unaudited financial statements of Seller
presented fairly in accordance with GAAP including a statement of operations
and a statement of changes in cash flows for such quarter and statement of net
assets as of the end of such quarter, and certified as being true and correct
by an officer’s certificate;


(ii)           Promptly
after the end of each month, to the extent provided by the applicable servicer,
with respect to Eligible Assets that are Eligible Loans, any and all certified
financial statements and rent rolls received from an applicable Eligible Loan
borrower;



 53
 









(iii)          Within one-hundred and twenty (120)
days after the last day of its fiscal year, Seller’s consolidated audited
financial statements, prepared by a nationally recognized independent certified
public accounting firm and presented fairly in accordance with GAAP including a
statement of operations and a statement of changes in cash flows for such
quarter and statement of net assets as of the end of such quarter in a similar manner as presented in the AICPA
Audit and Accounting Guide, “Audits of Investment Companies”, and (y)
the audited statements of income and statements of changes in cash flow for
such year and balance sheets as of the end of such year of Seller accompanied
by an unqualified report of the nationally recognized independent certified
public accounting firm that prepared them;


(iv)          Promptly after receipt of same, but,
in any event, within 20 days after the last day of each calendar quarter in any
fiscal year, any and all property level financial information with respect to
the Purchased Assets that is in the possession of Seller including, without
limitation, rent rolls and income statements for the immediately preceding
quarter and, when available, for the preceding year;


(v)           Within sixty (60) days after the last
day of each calendar quarter in any fiscal year, an officer’s certificate from
Seller addressed to Buyer certifying that, as of such calendar month, (x)
Seller is in compliance with all of the terms, conditions and requirements of
this Agreement, and (y) no Event of Default exists;


(vi)          Within fifteen (15) days after the
last day of each month, a certificate substantially in the form attached hereto
as Exhibit XIX to this Agreement (the “Covenant Compliance
Certificate”), from a Responsible Officer of Seller, delivered no later
than one Business Day prior to the date of such Transaction, (i) stating
that as of the date of such certificate, Seller is not aware of any facts, or
pending developments, that have caused, or may in the future cause, the Market
Value of any Purchased Asset to decline at any time within the reasonably
foreseeable future; (ii) stating that, as of the date of such certificate
and since the date of the certificate most recently delivered pursuant to Article
12(j), Seller has observed or performed all of its covenants and other
agreements in all material respects, and satisfied in all material respects,
every condition, contained in this Agreement and the related documents to be
observed, performed or satisfied by it; (iii) stating that as of the date
of such certificate such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(iv) stating that (A) other than as set forth in clause (B) below, as of
the date of such certificate the representations and warranties made by Seller
in Article 10 are true, correct and complete in all material respects
with the same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date), and (B) with respect to the
representations and warranties set forth in Article 10(b)(x)(D) of this
Agreement, no Material Breach has occurred; (v) stating that as of the date of
such certificate no “Termination Event”, “Event of Default”, “Potential Event
of Default” or any similar event by Seller, however denominated, has occurred
and is continuing under any Hedging Transaction; and (vii) showing in
detail the calculations supporting such Responsible Officer’s certification of
the applicable Seller’s compliance with the financial requirements of Article
11;



 54
 









(vii)         With respect to each Eligible Asset
that is a CMBS or a Junior Interest, as soon as available but in any event not
later than ten (10) days after receipt thereof, the related monthly securitization
report;


(viii)        Within fifteen (15) days after each
month end, a listing of any changes in all Hedging Transactions, Qualified
Hedge Counterparties and the material terms of each Hedging Transaction; and


(ix)           Within fifteen (15) days after each
month end, a monthly reporting package substantially in the form of Exhibit
III attached hereto.


(k)           Seller
shall make a representative available to Buyer every month for attendance at a
telephone conference, the date of which to be mutually agreed upon by Buyer and
Seller, regarding the status of each Purchased Asset, Seller’s compliance with
the requirements of Articles 11 and 12, and any other matters
relating to the Transaction Documents or Transactions that Buyer wishes to
discuss with Seller.


(l)            Seller
shall at all times comply in all material respects with all laws, ordinances,
rules and regulations of any federal, state, municipal or other public
authority having jurisdiction over Seller or any of its assets and Seller shall
do or cause to be done all things necessary to preserve and maintain in full
force and effect its legal existence, and all licenses material to its
business.


(m)          Seller
shall at all times keep proper books of records and accounts in which full,
true and correct entries shall be made of its transactions fairly in accordance
with GAAP, in a similar manner as presented in the AICPA Audit and Accounting
Guide, “Audits of Investment Companies,” and set aside on its books from its
earnings for each fiscal year all such proper reserves in accordance with GAAP.


(n)           Seller
shall observe, perform and satisfy all the terms, provisions, covenants and
conditions required to be observed, performed or satisfied by it, and shall pay
when due all costs, fees and expenses required to be paid by it, under the
Transaction Documents.  Seller shall pay
and discharge all taxes, levies, liens and other charges on its assets and on
the Collateral that, in each case, in any manner would create any lien or
charge upon the Collateral, other than any such taxes that are being
appropriately contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves have been provided in
accordance with GAAP.


(o)           Seller
shall advise Buyer in writing of the opening of any new chief executive office
or the closing of any such office and of any change in Seller’s name or the
places where the books and records pertaining to the Purchased Assets are held
not less than fifteen (15) Business Days prior to taking any such action.


(p)           Seller
will maintain records with respect to the Collateral and Purchased Items and
the conduct and operation of its business with no less a degree of prudence
than if the Collateral and Purchased Items were held by Seller for its own
account and will furnish Buyer, upon reasonable request by Buyer or its
designated representative, with reasonable information



 55
 









obtainable by Seller with respect to the Collateral and Purchased Items
and the conduct and operation of its business.


(q)           Seller
shall provide Buyer with reasonable access to operating statements, the
occupancy status and other property level information with respect to the
underlying real estate directly or indirectly securing or supporting such
Purchased Assets that either is in Seller’s possession or is available to
Seller, plus any such additional reports as Buyer may reasonably request.


(r)            Seller
shall enter into Hedging Transactions with respect to each of the
Hedge-Required Assets to the extent necessary to hedge interest rate risk
associated with the Purchase Price on such Hedge-Required Assets, in a manner
reasonably acceptable to Buyer, to the extent that such Hedging Transactions
will not give rise to non-qualifying REIT income under section 856 of the Code.


(s)           Seller
shall take all such steps as the Buyer deems necessary to perfect the security
interest granted pursuant to Article 6 in the Hedging Transactions, shall
take such action as shall be necessary or advisable to preserve and protect
Seller’s interest under all such Hedging Transactions (including, without
limitation, requiring the posting of any required Additional Eligible
Collateral thereunder, and hereby authorizes Buyer to take any such action that
Seller fails to take after demand therefor by Buyer.  Seller shall provide the Custodian with
copies of all documentation relating to Hedging Transactions with Qualified
Hedge Counterparties promptly after entering into same.  All Hedging Transactions, if any, entered
into by Seller with Buyer or any of its Affiliates in respect of any Purchased
Asset shall be terminated contemporaneously with the repurchase of such
Purchased Asset on the Repurchase Date therefor.


ARTICLE
13.

EVENTS OF DEFAULT; REMEDIES


(a)           Each
of the following events shall constitute an “Event of Default” under
this Agreement:


(i)            Seller shall fail to repurchase
Purchased Assets upon the applicable Repurchase Date;


(ii)           Buyer
shall fail to receive on any Remittance Date the accreted value of the Price
Differential (less any amount of such Price Differential previously paid by
Seller to Buyer) (including, without limitation, in the event the Income paid
or distributed on or in respect of the Purchased Assets is insufficient to make
such payment and Seller does not make such payment or cause such payment to be
made) (except that such failure shall not be an Event of Default by Seller if
sufficient Income, including Principal Payments which would otherwise be
remitted to Seller pursuant to Article 5 of this Agreement, is on
deposit in the Cash Management Account and the Depository fails to remit such
funds to Buyer);



 56
 









(iii)          Seller
shall fail to cure any Margin Deficit, to the extent such Margin Deficit equals
or exceeds the Minimum Transfer Amount, in accordance with Article 4
of this Agreement;


(iv)          Seller shall fail to make any payment
not otherwise addressed under this Article 13(a) owing to Buyer
that has become due, whether by acceleration or otherwise under the terms of
this Agreement, which failure is not remedied within five (5) Business Days;


(v)           Seller shall default in the
observance or performance of any agreement contained in Article 11
of this Agreement and, solely with respect to Article 11(d), such default shall
not be cured within ten (10) Business Days after notice by Buyer to Seller;


(vi)          an Act of Insolvency occurs with
respect to Seller;


(vii)         Seller shall admit to any Person its
inability to, or its intention not to, perform any of its obligations
hereunder;


(viii)        the Custodial Agreement, the Control
Agreement or any other Transaction Document or a replacement therefor
acceptable to Buyer shall for
whatever reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by Seller;


(ix)           Seller shall be in default under (i) any
Indebtedness of Seller, as appropriate, which default (1) involves the failure
to pay a matured obligation in excess of $5,000,000, or (2) permits the
acceleration of the maturity of obligations by any other party to or
beneficiary with respect to such Indebtedness, if the aggregate amount of the
Indebtedness in respect of which such default or defaults shall have occurred
is at least $5,000,000; or (ii) any other material contract to which Seller is
a party which default (1) involves the failure to pay a matured obligation, or
(2) permits the acceleration of the maturity of obligations by any other party
to or beneficiary of such contract if the aggregate amount of such obligations
is $5,000,000;


(x)            (i) Seller or an ERISA Affiliate
shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan that is not exempt
from such Sections of ERISA and the Code, (ii) any material “accumulated
funding deficiency” (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the PBGC
or a Plan shall arise on the assets of Seller or any ERISA Affiliate,
(iii) a Reportable Event (as referenced in Section 4043(b)(3) of ERISA)
shall occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of Buyer, likely to result in the termination
of such Plan for purposes of Title IV of ERISA, (iv) any Plan shall
terminate for purposes of Title IV of ERISA, (v) Seller or any ERISA
Affiliate shall, or in the reasonable opinion of Buyer is likely to, incur any
liability in connection with a withdrawal from, or the insolvency or
reorganization of, a Multiemployer Plan or (vi) any



 57
 









other event or
condition shall occur or exist with respect to a Plan; and in each case in
clauses (i) through (vi) above, such event or condition, together with all
other such events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect;


(xi)           either (A) the Transaction Documents
shall for any reason not cause, or shall cease to cause, Buyer to be the owner
free of any adverse claim of any of the Purchased Assets, and such condition is
not cured by Seller within five (5) Business Days after notice thereof from
Buyer to Seller, or (B) if a Transaction is recharacterized as a secured
financing, and the Transaction Documents with respect to any Transaction shall
for any reason cease to create and maintain a valid first priority security
interest in favor of Buyer in any of the Purchased Assets and such condition is
not cured by Seller within five (5) Business Days after notice thereof from
Buyer to Seller;


(xii)          an “Event of Default,” “Termination
Event,” “Potential Event of Default” or other default or breach, however
denominated, occurs under any Hedging Transaction on the part of Seller, or the
counterparty to Seller on any such Hedging Transaction with a Qualified Hedge
Counterparty ceases to be a Qualified Hedge Counterparty, that is otherwise not
cured within any applicable cure period thereunder or, if no cure period exists
thereunder, which is not cured by Seller within five (5) Business Days after
notice thereof from an Affiliated Hedge Counterparty or Qualified Hedge
Counterparty to Seller;


(xiii)         any governmental, regulatory, or self-regulatory
authority shall have taken any action to remove, limit, restrict, suspend or
terminate the rights, privileges, or operations of Seller, which suspension has
a Material Adverse Effect in the determination of Buyer and that is not cured
by Seller, within fifteen (15) Business Days after notice thereof from Buyer to
Seller;


(xiv)        any condition shall exist that
constitutes a Material Adverse Effect in Buyer’s sole discretion exercised in
good faith that is not cured by Seller, within seven (7) Business Days after
notice thereof from Buyer to Seller;


(xv)         (A)
any representation made by Seller to Buyer shall have been incorrect or untrue
in any material respect when made or repeated or deemed to have been made or
repeated (other than the representations and warranties of Seller set forth in Article 10(b)(x),
(other than Article 10(b)(x)(D)), Article 10(b)(xxi) or Article
10(b)(xxii) of this Agreement, and (B) any Material Breach shall have
occurred with respect to the representations and warranties set forth in Article
10(b)(x)(D), which shall not be considered an Event of Default if incorrect
or untrue in any material respect, provided Seller terminates the
related Transaction, as applicable, and repurchases the related Purchased
Assets on an Early Repurchase Date no later than three (3) Business Days after
receiving notice of such incorrect or untrue representation; unless Seller
shall have made any such representation with knowledge that it was materially
incorrect or untrue at the time made;


(xvi)        a
final non-appealable judgment by any competent court in the United States
of America for the payment of money in an amount greater than $5,000,000 shall



 58
 









have been rendered against Seller, and remained undischarged or unpaid
for a period of sixty (60) days, during which period execution of such judgment
is not effectively stayed by bonding over or other means acceptable to Buyer;
and


(xvii)       if Seller shall breach or fail to perform
any of the terms, covenants, obligations or conditions of this Agreement, other
than as specifically otherwise referred to in this definition of “Event of
Default”, and such breach or failure to perform is not remedied within the
earlier of thirty (30) days after (a) delivery of notice thereof to Seller by
Buyer, or (b) actual knowledge on the part of Seller of such breach or failure
to perform; provided that, if Buyer determines, in its sole discretion, that
any such breach is capable of being cured and Seller is diligently and
continuously pursuing such a cure in good faith but is not able to do so on a
timely basis, Seller shall have an additional period of time, not to exceed
thirty (30) additional days, within which to complete such cure.


(b)           After
the occurrence and during the continuance of an Event of Default, Seller hereby
appoints Buyer as attorney-in-fact of Seller for the purpose of
carrying out the provisions of this Agreement and taking any action and
executing or endorsing any instruments that Buyer may deem necessary or
advisable to accomplish the purposes hereof, which appointment as attorney-in-fact
is irrevocable and coupled with an interest. 
If an Event of Default shall occur and be continuing with respect to
Seller, the following rights and remedies shall be available to Buyer:


(i)            At the option of Buyer, exercised by
written notice to Seller (which option shall be deemed to have been exercised,
even if no notice is given, immediately upon the occurrence of an Act of
Insolvency with respect to Seller), the Repurchase Date for each Transaction
hereunder shall, if it has not already occurred, be deemed immediately to occur
(the date on which such option is exercised or deemed to have been exercised
being referred to hereinafter as the “Accelerated Repurchase Date”).


(ii)           If
Buyer exercises or is deemed to have exercised the option referred to in Article 13(b)(i)
of this Agreement:


(A)          Seller’s obligations hereunder to
repurchase all Purchased Assets shall become immediately due and payable on and
as of the Accelerated Repurchase Date; and


(B)           to
the extent permitted by applicable law, the Repurchase Price with respect to
each Transaction (determined as of the Accelerated Repurchase Date) shall be
increased by the aggregate amount obtained by daily application of, on a 360
day per year basis for the actual number of days during the period from and
including the Accelerated Repurchase Date to but excluding the date of payment
of the Repurchase Price (as so increased), (x) the Pricing Rate for such
Transaction multiplied by (y) the Repurchase Price for such Transaction
(decreased by (I) any amounts actually remitted to Buyer by the Depository or
Seller from time to time pursuant to Article 5 of this Agreement and
applied to such Repurchase Price, and (II) any amounts applied to the
Repurchase Price pursuant to Article 13(b)(iii) of this Agreement);
and


 



 59















(C)           the
Custodian shall, upon the request of Buyer, deliver to Buyer all instruments,
certificates and other documents then held by the Custodian relating to the
Purchased Assets.


(iii)          Upon
the occurrence of an Event of Default with respect to Seller, Buyer may (A)
immediately sell, at a public or private sale in a commercially reasonable
manner and at such price or prices as Buyer may deem satisfactory any or all of
the Purchased Assets, and/or (B) in its sole discretion elect, in lieu of
selling all or a portion of such Purchased Assets, to give Seller credit for
such Purchased Assets in an amount equal to the Market Value of such Purchased
Assets against the aggregate unpaid Repurchase Price for such Purchased Assets
and any other amounts owing by Seller under the Transaction Documents.  The proceeds of any disposition of Purchased
Assets effected pursuant to this Article 13(b)(iii) shall be applied,
(u) first, to the costs and expenses incurred by Buyer in connection with
Seller’s default; (v) second, to consequential damages, including, but not
limited to, costs of cover and/or Hedging Transactions, if any; (w) third, to
the Repurchase Price; (x) fourth, to any other outstanding obligation of Seller
to Buyer; and (y) fifth, to return any excess to Seller.


(iv)          The
parties recognize that it may not be possible to purchase or sell all of the
Purchased Assets on a particular Business Day, or in a transaction with the
same purchaser, or in the same manner because the market for such  Purchased Assets may not be liquid.  In view of the nature of the Purchased
Assets, the parties agree that liquidation of a Transaction or the Purchased
Assets does not require a public purchase or sale and that a good faith private
purchase or sale shall be deemed to have been made in a commercially reasonable
manner.  Accordingly, Buyer may elect, in
its sole discretion, the time and manner of liquidating any Purchased Assets,
and nothing contained herein shall (A) obligate Buyer to liquidate any
Purchased Assets on the occurrence and during the continuance of an Event of
Default or to liquidate all of the Purchased Assets in the same manner or on
the same Business Day or (B) constitute a waiver of any right or remedy of
Buyer.


(v)           Seller
shall be liable to Buyer for (A) the amount of all actual out-of-pocket
expenses, including reasonable legal fees and expenses, actually incurred by
Buyer in connection with or as a consequence of an Event of Default with
respect to Seller and (B) all costs incurred by Buyer in connection with Hedging
Transactions in the event that Seller, from and after an Event of Default,
takes any action to impede or otherwise affect Buyer’s remedies under this
Agreement.


(vi)          Buyer
shall have, in addition to its rights and remedies under the Transaction Documents,
all of the rights and remedies provided by applicable federal, state, foreign
(where relevant), and local laws (including, without limitation, if the
Transactions are recharacterized as secured financings, the rights and remedies
of a secured party under the UCC of the State of New York, to the extent that
the UCC is applicable, and the right to offset any mutual debt and claim), in
equity, and under any other agreement between Buyer and Seller.  Without limiting the generality of the
foregoing, Buyer shall be entitled to set off the proceeds of the liquidation
of the



 60
 









Purchased Assets against all of Seller’s
obligations to Buyer under this Agreement, without prejudice to Buyer’s right
to recover any deficiency.


(vii)         Subject
to the notice and cure periods set forth herein, Buyer may exercise any or all
of the remedies available to Buyer immediately upon the occurrence of an Event
of Default with respect to Seller and at any time during the continuance
thereof.  All rights and remedies arising
under the Transaction Documents, as amended from time to time, are cumulative
and not exclusive of any other rights or remedies that Buyer may have.


(viii)        Buyer
may enforce its rights and remedies hereunder without prior judicial process or
hearing, and Seller hereby expressly waives any defenses Seller might otherwise
have to require Buyer to enforce its rights by judicial process.  Seller also waives, to the extent permitted
by law, any defense Seller might otherwise have arising from the use of
nonjudicial process, disposition of any or all of the Purchased Assets, or from
any other election of remedies.  Seller
recognizes that nonjudicial remedies are consistent with the usages of the
trade, are responsive to commercial necessity and are the result of a bargain at
arm’s length.


ARTICLE 14.

SINGLE AGREEMENT


Buyer and Seller
acknowledge that, and have entered hereinto and will enter into each
Transaction hereunder in consideration of and in reliance upon the fact that,
all Transactions hereunder constitute a single business and contractual
relationship and have been made in consideration of each other.  Accordingly, each of Buyer and Seller agrees
(i) to perform all of its obligations in respect of each Transaction hereunder,
and that a default in the performance of any such obligations shall constitute
a default by it in respect of all Transactions hereunder, (ii) that each of
them shall be entitled to set off claims and apply property held by them in
respect of any Transaction against obligations owing to them in respect of any
other Transactions hereunder and (iii) that payments, deliveries and other
transfers made by either of them in respect of any Transaction shall be deemed
to have been made in consideration of payments, deliveries and other transfers
in respect of any other Transactions hereunder, and the obligations to make any
such payments, deliveries and other transfers may be applied against each other
and netted.


ARTICLE 15.

RECORDING OF COMMUNICATIONS


EACH OF
BUYER AND SELLER SHALL HAVE THE RIGHT (BUT NOT THE OBLIGATION) FROM TIME TO
TIME TO MAKE OR CAUSE TO BE MADE TAPE RECORDINGS OF COMMUNICATIONS BETWEEN ITS
EMPLOYEES, IF ANY, AND THOSE OF THE OTHER PARTY WITH RESPECT TO TRANSACTIONS; PROVIDED,
HOWEVER, THAT SUCH RIGHT TO RECORD COMMUNICATIONS SHALL BE LIMITED TO
COMMUNICATIONS OF EMPLOYEES TAKING PLACE ON THE TRADING FLOOR OF THE APPLICABLE
PARTY.  EACH OF BUYER AND SELLER HEREBY
CONSENTS TO THE ADMISSIBILITY OF SUCH TAPE



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RECORDINGS
IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, AND AGREES THAT A DULY
AUTHENTICATED TRANSCRIPT OF SUCH A TAPE RECORDING SHALL BE DEEMED TO BE A
WRITING CONCLUSIVELY EVIDENCING THE PARTIES’ AGREEMENT.


ARTICLE 16.

NOTICES AND OTHER COMMUNICATIONS


Unless otherwise provided
in this Agreement, all notices, consents, approvals and requests required or
permitted hereunder shall be given in writing and shall be effective for all
purposes if hand delivered or sent by (a) hand delivery, with proof of
delivery, (b) certified or registered United States mail, postage prepaid, (c)
expedited prepaid delivery service, either commercial or United States Postal
Service, with proof of delivery or (d) by telecopier (with answerback
acknowledged) provided that such telecopied notice must also be
delivered by one of the means set forth in (a), (b) or (c) above, to the
address specified in Annex I hereto or at such other address and person as
shall be designated from time to time by any party hereto, as the case may be,
in a written notice to the other parties hereto in the manner provided for in this
Article.  A notice shall be deemed to
have been given: (w) in the case of hand delivery, at the time of delivery, (x)
in the case of registered or certified mail, when delivered or the first
attempted delivery on a Business Day, (y) in the case of expedited prepaid
delivery upon the first attempted delivery on a Business Day, or (z) in the
case of telecopier, upon receipt of answerback confirmation, provided
that such telecopied notice was also delivered as required in this
Article.  A party receiving a notice that
does not comply with the technical requirements for notice under this Article
may elect to waive any deficiencies and treat the notice as having been
properly given.


ARTICLE 17.

ENTIRE AGREEMENT; SEVERABILITY


This Agreement shall
supersede any existing agreements between the parties containing general terms
and conditions for repurchase transactions. 
Each provision and agreement herein shall be treated as separate and
independent from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.


ARTICLE 18.

NON-ASSIGNABILITY


(a)           Subject to Article 18(b) below,
Seller may not assign any of its rights or obligations under this Agreement
without the prior written consent of Buyer not to be unreasonably withheld or
delayed and any attempt by Seller to assign any of its rights or obligations
under this Agreement without the prior written consent of Buyer shall be null
and void.  Buyer may upon notice to
Seller and without consent of Seller, sell to one or more banks, financial
institutions or other entities (“Participants”) participating interests
in any Transaction, its interest in the Purchased Assets, or any other interest
of Buyer under this Agreement.  Buyer
may, at any time and from time to time, assign to any Person (an “Assignee”
and together with



 62
 









Participants, each a “Transferee”
and collectively, the “Transferees”) all or any part of its rights its
interest in the Purchased Assets, or any other interest of Buyer under this
Agreement, except that, prior to an Event of Default, no such Transferee shall
be one of the Prohibited Transferees set forth on Exhibit IX
hereto.  Seller agrees to cooperate with
Buyer in connection with any such assignment, transfer or sale of participating
interest and to enter into such restatements of, and amendments, supplements
and other modifications to, this Agreement in order to give effect to such
assignment, transfer or sale.


(b)           Title to all Purchased Assets and
Purchased Items shall pass to Buyer and Buyer shall have free and unrestricted
use of all Purchased Assets.  Nothing in
this Agreement shall preclude Buyer from engaging in repurchase transactions
with the Purchased Assets and Purchased Items or otherwise selling, pledging,
repledging, transferring, hypothecating, or rehypothecating the Purchased
Assets and Purchased Items, all on terms that Buyer may determine in its sole
discretion; provided, however, that Buyer shall (i) provide
Seller with the name of each such third-party involved in any such transaction
and (ii) transfer the Purchased Assets to Seller on the applicable Repurchase
Date free and clear of any pledge, lien, security interest, encumbrance, charge
or other adverse claim on any of the Purchased Assets and (iii) credit income
and principal to Seller in accordance with Article 5 hereof.  Nothing contained in this agreement shall
obligate Buyer to segregate any Purchased Assets or Purchased Items transferred
to Buyer by Seller.


ARTICLE 19.

GOVERNING LAW


THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.


ARTICLE 20.

NO WAIVERS, ETC.


No express or implied
waiver of any Event of Default by either party shall constitute a waiver of any
other Event of Default and no exercise of any remedy hereunder by any party
shall constitute a waiver of its right to exercise any other remedy
hereunder.  No modification or waiver of
any provision of this Agreement and no consent by any party to a departure
herefrom shall be effective unless and until such shall be in writing and duly
executed by both of the parties hereto. 
Without limitation on any of the foregoing, the failure to give a notice
pursuant to Articles 4(a) or 4(b) hereof will not constitute
a waiver of any right to do so at a later date.


ARTICLE 21.

USE OF EMPLOYEE PLAN ASSETS


(a)           If assets of an employee benefit plan
subject to any provision of ERISA
are intended to be used by either party hereto (the “Plan Party”) in a Transaction, the Plan Party
shall so notify the other party prior to the Transaction.  The Plan Party shall represent in writing to
the other party that the Transaction does not constitute a prohibited transaction
under ERISA or is



 63
 









otherwise exempt therefrom, and
the other party may proceed in reliance thereon but shall not be required so to
proceed.


(b)           Subject to the last sentence of
subparagraph (a) of this Article, any such Transaction shall proceed only if
Seller furnishes or has furnished to Buyer its most recent available audited
statement of its financial condition and its most recent subsequent unaudited
statement of its financial condition.


(c)           By entering into a Transaction,
pursuant to this Article, Seller shall be deemed (i) to represent to Buyer
that since the date of Seller’s latest such financial statements, there has
been no material adverse change in Seller’s financial condition that Seller has
not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and
unaudited statements of its financial condition as they are issued, so long as
it is Seller in any outstanding Transaction involving a Plan Party.


ARTICLE 22.

INTENT


(a)           The parties recognize that each
Transaction is a “repurchase agreement” as that term is defined in Section
101(47) of Title 11 of the United States Code, as amended (except insofar as
the type of Assets subject to such Transaction or the term of such Transaction
would render such definition inapplicable), and a “securities contract” as that
term is defined in Section 741 of Title 11 of the United States Code, as
amended (except insofar as the type of assets subject to such Transaction would
render such definition inapplicable).


(b)           It is understood that either party’s
right to liquidate Assets delivered to it in connection with Transactions
hereunder or to exercise any other remedies pursuant to Article 13 hereof
is a contractual right to liquidate such Transaction as described in Sections
555, 559 and 561 of Title 11 of the United States Code, as amended.


(c)           The parties agree and acknowledge
that if a party hereto is an “insured depository institution,” as such term is
defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each
Transaction hereunder is a “qualified financial contract,” as that term is
defined in the FDIA and any rules, orders or policy statements thereunder
(except insofar as the type of assets subject to such Transaction would render
such definition inapplicable).


(d)           It is understood that this Agreement
constitutes a “netting contract” as defined in and subject to Title IV of the
Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and each
payment entitlement and payment obligation under any Transaction hereunder
shall constitute a “covered contractual payment entitlement” or “covered
contractual payment obligation”, respectively, as defined in and subject to
FDICIA (except insofar as one or both of the parties is not a “financial institution”
as that term is defined in FDICIA).


(e)           It is understood that this Agreement
constitutes a “master netting agreement” as defined in Section 101(38A) of
Title 11 of the United States Code, as amended, and as used in Section 561 of
Title 11 of the United States Code, as amended.



 64
 









(f)            It is the intention of the parties
that, for U.S. Federal, state and local income and franchise tax purposes and
for accounting purposes, each Transaction constitute a financing, and that
Seller be (except to the extent that Buyer shall have exercised its remedies
following an Event of Default) the owner of the Purchased Assets for such
purposes.  Unless prohibited by
applicable law, Seller and Buyer agree to treat the Transactions as described
in the preceding sentence on any and all filings with any U.S. Federal, state,
or local taxing authority.


ARTICLE 23.

DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS


The parties acknowledge
that they have been advised that:


(a)           in the case of Transactions in which
one of the parties is a broker or dealer registered with the Securities and
Exchange Commission (“SEC”)
under Section 15 of the Securities Exchange Act of 1934 (“1934 Act”), the
Securities Investor Protection Corporation has taken the position that the
provisions of the Securities Investor Protection Act of 1970 (“SIPA”) do not protect
the other party with respect to any Transaction hereunder;


(b)           in the case of Transactions in which
one of the parties is a government securities broker or a government securities
dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not
provide protection to the other party with respect to any Transaction
hereunder; and


(c)           in the case of Transactions in which
one of the parties is a financial institution, funds held by the financial
institution pursuant to a Transaction hereunder are not a deposit and therefore
are not insured by the Federal Deposit Insurance Corporation or the National
Credit Union Share Insurance Fund, as applicable.


ARTICLE 24.

CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL


(a)           Each party irrevocably and
unconditionally (i) submits to the non-exclusive jurisdiction of any
United States Federal or New York State court sitting in Manhattan, and any
appellate court from any such court, solely for the purpose of any suit, action
or proceeding brought to enforce its obligations under this Agreement or
relating in any way to this Agreement or any Transaction under this Agreement
and (ii) waives, to the fullest extent it may effectively do so, any defense of
an inconvenient forum to the maintenance of such action or proceeding in any
such court and any right of jurisdiction on account of its place of residence
or domicile.


(b)           To the extent that either party has
or hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set off or
any legal process (whether service or notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property, such party hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of any action
brought to enforce its obligations under this Agreement or relating in any way
to this Agreement or any Transaction under this Agreement.



 65
 









(c)           The parties hereby irrevocably waive,
to the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding and irrevocably consent
to the service of any summons and complaint and any other process by the
mailing of copies of such process to them at their respective address specified
herein.  The parties hereby agree that a
final judgment in any such 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.  Nothing in this Article
24 shall affect the right of Buyer to serve legal process in any other
manner permitted by law or affect the right of Buyer to bring any action or
proceeding against Seller or its property in the courts of other jurisdictions.


(d)           EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER
TRANSACTION DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.


ARTICLE 25.

NO RELIANCE


Each of Buyer and Seller
hereby acknowledges, represents and warrants to the other that, in connection
with the negotiation of, the entering into, and the performance under, the
Transaction Documents and each Transaction thereunder:


(a)           It is not relying (for purposes of
making any investment decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of the other party to the Transaction
Documents, other than the representations expressly set forth in the
Transaction Documents;


(b)           It has consulted with its own legal,
regulatory, tax, business, investment, financial and accounting advisors to the
extent that it has deemed necessary, and it has made its own investment,
hedging and trading decisions (including decisions regarding the suitability of
any Transaction) based upon its own judgment and upon any advice from such
advisors as it has deemed necessary and not upon any view expressed by the other
party;


(c)           It is a sophisticated and informed
Person that has a full understanding of all the terms, conditions and risks
(economic and otherwise) of the Transaction Documents and each Transaction
thereunder and is capable of assuming and willing to assume (financially and
otherwise) those risks;


(d)           It is entering into the Transaction
Documents and each Transaction thereunder for the purposes of managing its
borrowings or investments or hedging its underlying assets or liabilities and
not for purposes of speculation; and


(e)           It is not acting as a fiduciary or
financial, investment or commodity trading advisor for the other party and has
not given the other party (directly or indirectly through any other Person) any
assurance, guarantee or representation whatsoever as to the merits (either



 66
 









legal, regulatory, tax,
business, investment, financial accounting or otherwise) of the Transaction
Documents or any Transaction thereunder.


ARTICLE 26.

INDEMNITY


Seller hereby agrees to
indemnify the Buyer, the Buyer’s designee, Buyer’s Affiliates and each of its
officers, directors, employees and agents (“Indemnified Parties”) from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, taxes (including stamp, excise, sales or other taxes that may be payable
or determined to be payable with respect to any of the Purchased Assets,
Purchased Items or Collateral or in connection with any of the transactions
contemplated by this Agreement and the documents delivered in connection
herewith and for relying on the receipt by Buyer from Seller of any written
instrument received hereunder that on its face purports to be genuine, other
than income, withholding or other taxes of the Buyer), fees, costs, expenses
(including reasonable attorneys fees and disbursements) or disbursements (all
of the foregoing, collectively “Indemnified
Amounts”) that may at any time (including, without
limitation, such time as this Agreement shall no longer be in effect and the
Transactions shall have been repaid in full) be imposed on or asserted against
any Indemnified Party in any way whatsoever arising out of or in connection
with, or relating to, this Agreement or any Transactions hereunder or any
action taken or omitted to be taken by any Indemnified Party under or in
connection with any of the foregoing, provided that Seller shall
not be liable for losses resulting from the gross negligence or willful
misconduct of Buyer or any other Indemnified Party.  Without limiting the generality of the
foregoing, Seller agrees to hold Buyer harmless from and indemnify Buyer
against all Indemnified Amounts with respect to all Purchased Assets relating
to or arising out of any violation or alleged violation of any environmental
law, rule or regulation or any consumer credit laws, including without
limitation ERISA, the Truth in Lending Act and/or the Real Estate Settlement
Procedures Act, provided that Seller shall not be liable for
losses resulting from the gross negligence or willful misconduct of Buyer or
any other Indemnified Party .  In any
suit, proceeding or action brought by Buyer in connection with any Purchased
Asset for any sum owing thereunder, or to enforce any provisions of any
Purchased Asset, Seller will save, indemnify and hold Buyer harmless from and
against all actual, out-of-pocket expense (including reasonable attorneys’
fees), loss or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction or liability whatsoever of the account
debtor or obligor thereunder, arising out of a breach by Seller of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or
its successors from Seller.  Seller also
agrees to reimburse Buyer as and when billed by Buyer for all Buyer’s
reasonable costs and out-of-pocket expenses incurred in connection
with Buyer’s due diligence reviews with respect to the Purchased Assets
(including, without limitation, those incurred pursuant to Article 27
and Article 3(b)(xiii) (including, without limitation, all
Pre-Purchase Legal Expenses, even if the underlying prospective Transaction for
which they were incurred does not take place for any reason) and the
enforcement or the preservation of Buyer’s rights under this Agreement, any
Transaction Documents or Transaction contemplated hereby, including without
limitation the reasonable fees and disbursements of its counsel.  Seller hereby acknowledges that, the obligation
of Seller hereunder is a recourse obligation of Seller.



 67
 









ARTICLE 27.

DUE DILIGENCE


Seller acknowledges that
Buyer has the right to perform continuing due diligence reviews with respect to
the Purchased Assets, for purposes of verifying compliance with the
representations, warranties and specifications made hereunder, or otherwise,
and Seller agrees that upon reasonable prior notice to Seller, Buyer or its
authorized representatives will be permitted during normal business hours to
examine, inspect, and make copies and extracts of, the Purchased Asset Files,
Servicing Records and any and all documents, records, agreements, instruments
or information relating to such Purchased Assets in the possession or under the
control of Seller, any other servicer or subservicer and/or the Custodian.  Seller agrees to reimburse Buyer for any and
all reasonable out-of-pocket costs and expenses incurred by Buyer
with respect to the Purchased Assets during the term of this Agreement, which
shall be paid by Seller to Buyer within (10) days after receipt of an invoice
therefor.  Seller also shall make
available to Buyer a knowledgeable financial or accounting officer for the
purpose of answering questions respecting the Purchased Asset Files and the
Purchased Assets.  Without limiting the
generality of the foregoing, Seller acknowledges that Buyer may enter into
Transactions with Seller based solely upon the information provided by Seller
to Buyer and the representations, warranties and covenants contained herein,
and that Buyer, at its option, has the right at any time to conduct a partial
or complete due diligence review on some or all of the Purchased Assets.  Buyer may underwrite such Purchased Assets
itself or engage a third party underwriter to perform such underwriting.  Seller agrees to cooperate with Buyer and any
third party underwriter in connection with such underwriting, including, but
not limited to, providing Buyer and any third party underwriter with access to
any and all documents, records, agreements, instruments or information relating
to such Purchased Assets in the possession, or under the control, of
Seller.  Seller further agrees that
Seller shall reimburse Buyer for any and all reasonable attorney’s fees, costs
and expenses incurred by Buyer in connection with diligence on Eligible Assets
and Purchased Assets.


ARTICLE 28.

SERVICING


(a)           Notwithstanding the purchase and sale
of the Purchased Assets hereby, Seller, Servicer or a third party servicer
reasonably approved by Buyer shall service the Purchased Assets that are
Eligible Loans (such Purchased Assets, “Serviced Assets”) for the
benefit of Buyer and, if Buyer shall exercise its rights to pledge or
hypothecate the Serviced Assets prior to the Repurchase Date pursuant to Article
8, for the benefit of Buyer’s assigns. 
Seller shall service or cause Servicer to service the Serviced Assets at
Seller’s sole cost and for the benefit of Buyer in accordance with Accepted
Servicing Practices approved by Buyer in the exercise of its reasonable
business judgment and maintained by other prudent mortgage or mezzanine lenders
with respect to mortgage and/or mezzanine loans similar to the Serviced Assets,
provided, however, that the obligations of Seller to service any
of the Serviced Assets shall cease, at Buyer’s option, upon the earliest of (i)
an Event of Default, or (ii) the transfer of servicing approved by Seller and
Buyer, which Seller’s consent shall not be unreasonably withheld.  Notwithstanding the foregoing, neither Seller
nor Servicer shall take any material action or effect any modification or amendment
to any Purchased Asset without first having given prior notice



 68
 









thereof to Buyer in each such
instance and receiving the prior written consent of Buyer, which consent
shall  not be unreasonably withheld or
delayed.


(b)           Seller agrees that Buyer is the owner
of all servicing records, including but not limited to any and all servicing
agreements and pooling and servicing agreements (including, without limitation
any “Interim Servicing Agreement” with Servicer) (collectively, the “Servicing Agreements”),
files, documents, records, data bases, computer tapes, copies of computer
tapes, proof of insurance coverage, insurance policies, appraisals, other
closing documentation, payment history records, and any other records relating
to or evidencing the servicing of Purchased Assets (the “Servicing Records”) so
long as the Purchased Assets are subject to this Agreement.  Seller grants Buyer a security interest in
all servicing fees and rights relating to the Purchased Assets and all
Servicing Records to secure the obligation of Seller or its designee to service
in conformity with this Article and any other obligation of Seller to
Buyer.  Seller covenants to safeguard
such Servicing Records and to deliver them promptly to Buyer or its designee
(including the Custodian) at Buyer’s request.


(c)           Upon the occurrence and during the
continuance of an Event of Default, Buyer may, in its sole discretion, (i) sell
its right to the Purchased Assets on a servicing released basis or (ii)
terminate Seller, Servicer or any sub-servicer of the Purchased Assets
with or without cause, in each case without payment of any termination fee.


(d)           Seller shall not employ sub-servicers
to service the Purchased Assets without the prior written approval of Buyer,
which shall not be unreasonably withheld. 
If the Purchased Assets are serviced by a sub-servicer, Seller
shall irrevocably assign all rights, title and interest (if any) in the
Servicing Agreements in the Purchased Assets to Buyer.


(e)           Seller shall cause Servicer or any
sub-servicers engaged by Seller to execute a letter agreement with Buyer
acknowledging Buyer’s security interest and agreeing that it shall deposit all
Income with respect to the Purchased Assets in the Cash Management Account, and
so long as a Purchased Asset is subject to a Transaction, following notice from
Buyer to Seller of an Event of Default under this Agreement, Servicer shall
take no action under this Agreement with regard to such Purchased Asset other
than as specifically directed by Buyer.


(f)            The payment of servicing fees shall
be subordinate to payment of amounts outstanding under any Transaction and this
Agreement.


ARTICLE 29.

MISCELLANEOUS


(a)           All rights, remedies and powers of
Buyer hereunder and in connection herewith are irrevocable and cumulative, and
not alternative or exclusive, and shall be in addition to all other rights,
remedies and powers of Buyer whether under law, equity or agreement.  In addition to the rights and remedies
granted to it in this Agreement, to the extent this Agreement is determined to
create a security interest, Buyer shall have all rights and remedies of a
secured party under the UCC.



 69
 









(b)           The Transaction Documents may be
executed in counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and
the same instrument.


(c)           The headings in the Transaction
Documents are for convenience of reference only and shall not affect the
interpretation or construction of the Transaction Documents.


(d)           Without limiting the rights and
remedies of Buyer under the Transaction Documents, Seller shall pay Buyer’s
reasonable actual out-of-pocket costs and expenses, including
reasonable fees and expenses of accountants, attorneys and advisors, incurred
in connection with the preparation, negotiation, execution and consummation of,
and any amendment, supplement or modification to, the Transaction Documents and
the Transactions thereunder, whether or not such Transaction Document (or
amendment thereto) or Transaction is ultimately consummated.  Seller agrees to pay Buyer on demand all
costs and expenses (including reasonable expenses for legal services of every
kind) of any subsequent enforcement of any of the provisions hereof, or of the
performance by Buyer of any obligations of Seller in respect of the Purchased
Assets, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral or
Purchased Items and for the custody, care or preservation of the Collateral or
Purchased Items (including insurance costs) and defending or asserting rights
and claims of Buyer in respect thereof, by litigation or otherwise.  In addition, Seller agrees to pay Buyer on
demand all reasonable costs and expenses (including reasonable expenses for
legal services) incurred in connection with the maintenance of the Cash
Management Account and registering the Collateral and Purchased Items in the
name of Buyer or its nominee.  All such
expenses shall be recourse obligations of Seller to Buyer under this Agreement.


(e)           In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of such rights, Seller hereby grants to Buyer and its Affiliates a
right of offset, to secure repayment of all amounts owing to Buyer or its
Affiliates by Seller under the Transaction Documents, upon any and all monies,
securities, collateral or other property of Seller and the proceeds therefrom,
now or hereafter held or received by Buyer or its Affiliates or any entity
under the control of Buyer or its Affiliates and its respective successors and
assigns (including, without limitation, branches and agencies of Buyer,
wherever located), for the account of Seller, whether for safekeeping, custody,
pledge, transmission, collection, or otherwise, and also upon any and all
deposits (general or specified) and credits of Seller at any time
existing.  Buyer and its Affiliates are
hereby authorized at any time and from time to time upon the occurrence and
during the continuance of an Event of Default, without notice to Seller, to
offset, appropriate, apply and enforce such right of offset against any and all
items hereinabove referred to against any amounts owing to Buyer or its
Affiliates by Seller under the Transaction Documents, irrespective of whether
Buyer or its Affiliates shall have made any demand hereunder and although such
amounts, or any of them, shall be contingent or unmatured and regardless of any
other collateral securing such amounts. 
Seller shall be deemed directly indebted to Buyer and its Affiliates in
the full amount of all amounts owing to Buyer and its Affiliates by Seller
under the Transaction Documents, and Buyer and its Affiliates shall be entitled
to exercise the rights of offset provided for above.  ANY AND ALL RIGHTS TO REQUIRE BUYER OR ITS
AFFILIATES TO EXERCISE THEIR RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL OR PURCHASED ITEMS THAT



 70
 









SECURE THE AMOUNTS OWING TO
BUYER OR ITS AFFILIATES BY SELLER UNDER THE TRANSACTION DOCUMENTS, PRIOR TO
EXERCISING THEIR RIGHT OF OFFSET WITH RESPECT TO SUCH MONIES, SECURITIES,
COLLATERAL, DEPOSITS, CREDITS OR OTHER PROPERTY OF SELLER, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED BY SELLER.


(f)            Each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by
or be invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.


(g)           This Agreement contains a final and
complete integration of all prior expressions by the parties with respect to
the subject matter hereof and thereof and shall constitute the entire agreement
among the parties with respect to such subject matter, superseding all prior
oral or written understandings.


(h)           The parties understand that this
Agreement is a legally binding agreement that may affect such party’s rights.  Each party represents to the other that it
has received legal advice from counsel of its choice regarding the meaning and
legal significance of this Agreement and that it is satisfied with its legal
counsel and the advice received from it.


(i)            Should any provision of this
Agreement require judicial interpretation, it is agreed that a court
interpreting or construing the same shall not apply a presumption that the
terms hereof shall be more strictly construed against any Person by reason of
the rule of construction that a document is to be construed more strictly
against the Person who itself or through its agent prepared the same, it being
agreed that all parties have participated in the preparation of this Agreement.


(j)            Wherever pursuant to this Agreement,
Buyer exercises any right given to it to consent or not consent, or to approve
or disapprove, or any arrangement or term is to be satisfactory to, Buyer in
its sole discretion, Buyer shall decide to consent or not consent, or to
approve or disapprove or to decide that arrangements or terms are satisfactory
or not satisfactory, in its sole and absolute discretion and such decision by
Buyer shall be final and conclusive.


(k)           Each Affiliated Hedge Counterparty is
an intended third party beneficiary of this Agreement and the parties hereto
agree that this Agreement shall not be amended or otherwise modified without
the written consent of each Affiliated Hedge Counterparty, such consent not to
be unreasonably withheld.


[REMAINDER OF PAGE LEFT BLANK]



 71














IN WITNESS WHEREOF, the
parties have executed this Agreement as a deed as of the day first written
above.


	
  

  	
  BUYER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN
  CHASE BANK, N.A., a national 

  banking association

  	
   

  	
   

  



 


	
  

  	
   

  	
   

  	
   

  
	
  

  	
  By:

  	
  /s/ Kunal K.
  Singh

  	
   

  
	
   

  	
   

  	
  Name:  Kunal
  K. Singh

  	
   

  
	
   

  	
   

  	
  Title:  Vice
  President

  	
   

  



 











 


	
  

  	
  SELLER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CAPITAL
  TRUST, INC., a Maryland corporation

  	
   

  



 


	
  

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey G.
  Jervis

  	
   

  
	
   

  	
   

  	
  Name:  Geoffrey
  G. Jervis

  	
   

  
	
   

  	
   

  	
  Title:  Chief
  Financial Officer

  	
   

  



 















 


ANNEXES, EXHIBITS AND SCHEDULES


	
  ANNEX I

  	
   

  	
  Names and Addresses for Communications between
  Parties

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I

  	
   

  	
  Advance Rates and Applicable Pricing Rates

  
	
   

  	
   

  	
   

  
	
  EXHIBIT I

  	
   

  	
  Form of Confirmation

  
	
   

  	
   

  	
   

  
	
  EXHIBIT II

  	
   

  	
  Authorized Representatives of Seller

  
	
   

  	
   

  	
   

  
	
  EXHIBIT III

  	
   

  	
  Monthly Reporting Package

  
	
   

  	
   

  	
   

  
	
  EXHIBIT IV

  	
   

  	
  Form of Custodial Delivery

  
	
   

  	
   

  	
   

  
	
  EXHIBIT V

  	
   

  	
  Form of Power of Attorney

  
	
   

  	
   

  	
   

  
	
  EXHIBIT VI

  	
   

  	
  Representations and Warranties Regarding Individual
  Purchased Assets

  
	
   

  	
   

  	
   

  
	
  EXHIBIT VII

  	
   

  	
  Asset Information

  
	
   

  	
   

  	
   

  
	
  EXHIBIT VIII

  	
   

  	
  Advance Procedure

  
	
   

  	
   

  	
   

  
	
  EXHIBIT IX

  	
   

  	
  Excluded Transferees

  
	
   

  	
   

  	
   

  
	
  EXHIBIT X

  	
   

  	
  Form of Bailee Letter

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XI

  	
   

  	
  [Reserved]

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XII

  	
   

  	
  Form of Margin Deficit Notice

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XIII

  	
   

  	
  UCC Filing Jurisdictions

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XIV

  	
   

  	
  [Reserved]

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XV

  	
   

  	
  Additional Eligible Collateral

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XVI

  	
   

  	
  Form of Servicer Notice

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XVII

  	
   

  	
  Form of Release Letter

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XVIII

  	
   

  	
  [Reserved]

  
	
   

  	
   

  	
   

  
	
  EXHIBIT XIX

  	
   

  	
  Covenant Compliance Certificate

  



 











 


ANNEX I

Names and Addresses for Communications Between Parties


	
  Buyer:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  270 Park Avenue, 7th Floor

  
	
   

  	
  New York, New York 10017-2014

  
	
   

  	
  Attention:

  	
  Ms. Nancy S Alto

  
	
   

  	
  Telephone:

  	
  (212) 834-9271

  
	
   

  	
  Telecopy:

  	
  (212) 834-6565

  
	
   

  	
   

  	
   

  
	
  With copies to:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
  270 Park Avenue, 10th Floor

  
	
   

  	
  New York, New York 10017-2014

  
	
   

  	
  Attention:

  	
  Kunal K. Singh

  
	
   

  	
  Telephone:

  	
  (212) 834-5467

  
	
   

  	
  Telecopy:

  	
  (212) 834-6593

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  
	
   

  	
   

  
	
   

  	
  Cadwalader Wickersham & Taft LLP

  
	
   

  	
  227 West Trade Street

  
	
   

  	
  Charlotte, North Carolina 28202

  
	
   

  	
  Attention:

  	
  Stuart N. Goldstein, Esq.

  
	
   

  	
  Telephone:

  	
  (704) 348-5258

  
	
   

  	
  Telecopy:

  	
  (704) 348-5200

  
	
   

  	
   

  	
   

  
	
  Sellers:

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
  410 Park Avenue

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attn: Geoffrey G. Jervis

  
	
   

  	
  Phone: (212) 655-0247

  
	
   

  	
  Fax: (212) 655-0044

  
	
   

  	
   

  
	
  With copies to:

  	
   

  
	
   

  	
   

  
	
   

  	
  Paul, Hastings, Janofsky & Walker LLP

  
	
   

  	
  75 E. 55th Street

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attention:

  	
  Robert J. Grados, Esq.

  
	
   

  	
  Telephone:

  	
  (212) 318-6923

  
	
   

  	
  Telecopy:

  	
  (212) 230-7830

  



 











 


SCHEDULE I


Advance Rates and Applicable Spreads


CMBS
(Fixed/Floating)


	
  Rating

  	
   

  	
  Advance Rate %

  	
   

  	
  Pricing (L+) BPS

  
	
  BBB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  B+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  B+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  B

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  B-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  NR

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 


CRE CDO


	
  Rating

  	
   

  	
  Advance Rate %

  	
   

  	
  Pricing (L+) BPS

  
	
  A+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  A

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  A-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BBB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB+

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  BB-

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 


Senior
Mortgage Loans (>7% NOI Debt Yield)(2)


	
  Loan-to-Value (1)

  	
   

  	
  Advance Rate%

  	
   

  	
  Pricing (L+) BPS

  
	
  Less than 80%

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 


Senior
Mortgage Loans (<7% NOI Debt Yield) (2)


	
  Loan-to-Value (1)

  	
   

  	
  Advance Rate%

  	
   

  	
  Pricing (L+) BPS

  
	
  Less than 80%

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 


**** Material omitted
pursuant to a request for confidential treatment under Rule 24b-2 of the
Exchange Act of 1934.  Material filed
separately with the Securities and Exchange Commission.











 


Mezzanine
& B-Note Loans(3)


	
  Loan-to-Value (1)

  	
   

  	
  Advance Rate %

  	
   

  	
  Pricing (L+) BPS

  
	
  <50%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  50%-55%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  56%-60%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  61%-70%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  61%-70%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  61%-70%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  71%-75%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  71%-75%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  71%-75%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  76%-80%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  76%-80%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  76%-80%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  81%-85%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  81%-85%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  81%-85%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  86%-90%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  86%-90%

  	
   

  	
  [****]

  	
   

  	
  [****]

  
	
  86%-90%

  	
   

  	
  [****]

  	
   

  	
  [****]

  



 






(1)             JPMCB
Loan-to-Value.


(2)             Senior
Mortgage Loans are generally meant to apply to loans secured by stabilized,
income-producing properties.  Senior
Mortgage Loans on highly transitional properties or mortgages secured by
construction properties or development land will be handled on a case-by-case
basis.


(3)             [****]


 


 


 


**** Material omitted
pursuant to a request for confidential treatment under Rule 24b-2 of the
Exchange Act of 1934.  Material filed
separately with the Securities and Exchange Commission.


 











EXHIBIT I


CONFIRMATION
STATEMENT

JPMORGAN CHASE BANK, N.A.


Ladies and Gentlemen:


Capital Trust, Inc., is
pleased to deliver our written CONFIRMATION of
our agreement to enter into the Transaction pursuant to which JPMorgan Chase
Bank, N.A. shall purchase from us the Purchased Assets identified on the
attached Schedule 1 pursuant to the Master Repurchase Agreement,
dated as of November 1, 2006 (the “Agreement”), between JPMorgan Chase Bank, N.A.
(the “Buyer”)
and Capital Trust, Inc. (the “Seller”)
on the following terms.  Capitalized
terms used herein without definition have the meanings given in the Agreement.


	
  Purchase Date:

  	
              ,
  200    

  
	
  Purchased Assets:

  	
  [                   Name]:
  As identified on attached Schedule 1

  
	
  Aggregate Principal Amount of Purchased Assets:

  	
  [$            ]

  
	
  Repurchase Date:

  	
   

  
	
  Purchase Price:

  	
  [$            ]

  
	
  Change in Purchase Price

  	
  [$            ]

  
	
  Pricing Rate:

  	
  one month LIBOR plus%

  
	
  Pricing Rate at Max. Advance Rate:

  	
   

  
	
  Requested Advance Rate:

  	
   

  
	
  Maximum Advance Rate:

  	
   

  
	
  Governing Agreements:

  	
  As identified on attached Schedule 1

  
	
  Requested Wire Amount:

  	
   

  
	
  Requested Fund Date:

  	
   

  
	
  Transmission Date/Time:

  	
   

  
	
  Type of Funding:

  	
  [Table/Non-table]

  
	
  Wiring Instructions:

  	
   

  
	
  Name and address for communications:

  	
  Buyer:

  	
  JPMorgan Chase Bank, N.A. 

  
	
   

  	
   

  	
  270 Park Avenue, 7th Floor

  
	
   

  	
   

  	
  New York, New York 10017-2014

  
	
   

  	
   

  	
  Attention:

  	
  Ms. Nancy S. Alto

  
	
   

  	
   

  	
  Telephone:

  	
  (212) 834-9271

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 834-6565

  



 











 


	
  

  	
  With a copy to

  	
  JPMorgan Chase Bank, N.A. 

  
	
   

  	
   

  	
  270 Park Avenue, 10th Floor

  
	
   

  	
   

  	
  New York, New York 10017-2014

  
	
   

  	
   

  	
  Attention:

  	
  Mr. Kunal K. Singh

  
	
   

  	
   

  	
  Telephone:

  	
  (212) 834-5467

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 834-6593

  
	
   

  	
   

  	
   

  
	
   

  	
  Seller:

  	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  	
  410 Park Avenue 
  

  
	
   

  	
   

  	
  Attn: Geoffrey G. Jervis  

  
	
   

  	
   

  	
  New York, New York 10022

  
	
   

  	
   

  	
  Phone: (212) 655-0247 

  
	
   

  	
   

  	
  Fax:  (212)
  655-0044

  
					



 


 


 


 


	
  

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  AGREED AND ACKNOWLEDGED:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 















 


Schedule 1 to Confirmation
Statement


Purchased Assets:


Aggregate Principal Amount:


 











 


EXHIBIT II


AUTHORIZED REPRESENTATIVES OF SELLER


 


	
  Name

  	
   

  	
  Specimen Signature

  
	
   

  	
   

  	
   

  



 


 


 


 











EXHIBIT
III


MONTHLY REPORTING PACKAGE


[SAMPLE TO BE
ATTACHED]


·                                          Monthly
Reporting Package shall include, inter alia, the
following:


·                                          Listing
of all Eligible Assets reflecting payment status.


·                                          Listing
of all interest rate hedging positions outlining compliance with interest rate
hedging requirements.


·                                          Any
and all financial statements and rent rolls, to the extent that the Eligible
Asset borrower is obligated to provide same.


·                                          Servicing
tape and surveillance summary with respect to each Eligible Asset conforming to
CMSA standards.


·                                          Trustee
remittance reports.


·                                          Summary
of any material changes in the financial or other condition(s) of each Eligible
Asset.


·                                          All
other relevant or required documents.











EXHIBIT IV


FORM OF CUSTODIAL DELIVERY


On this                  
of                  ,
200       , Capital Trust, Inc., a Maryland
corporation, as Seller (“Seller”) under that certain Master Repurchase
Agreement, dated as of November 1, 2006 (the “Repurchase Agreement”) between JPMorgan Chase
Bank, N.A. (“Buyer”)
and Seller, does hereby deliver to LaSalle Bank National Association (“Custodian”), as
custodian under that certain Custodial Agreement, dated as of November 1, 2006
(the “Custodial Agreement”),
among Buyer, Custodian and Seller, the Purchased Asset Files with respect to
the Purchased Assets to be purchased by Buyer pursuant to the Repurchase
Agreement, which Purchased Assets are listed on the Purchased Asset Schedule
attached hereto and which Purchased Assets shall be subject to the terms of the
Custodial Agreement on the date hereof.


With respect to the
Purchased Asset Files delivered hereby, for the purposes of issuing the Trust
Receipt, the Custodian shall review the Purchased Asset Files to ascertain
delivery of the documents listed in Article 3 to the Custodial
Agreement.


Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Custodial Agreement.


IN WITNESS WHEREOF,
Seller has caused its name to be signed hereto by its officer thereunto duly
authorized as of the day and year first above written.


	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 















 


Purchased Asset Schedule
to Custodial Delivery


Purchased Assets











EXHIBIT V


FORM OF POWER OF ATTORNEY


“Know All Men by These Presents, that Capital Trust,
Inc., a Maryland corporation (“Seller”),
does hereby appoint JPMorgan Chase Bank, N.A. (“Buyer”), its attorney-in-fact to act
in Seller’s name, place and stead in any way that Seller could do with respect
to (i) the completion of the endorsements of the Mortgage Notes and the
Mezzanine Notes and the Assignments of Mortgages, (ii) the recordation of the
Assignments of Mortgages and (iii) the enforcement of Seller’s rights under the
Purchased Assets purchased by Buyer pursuant to the Master Repurchase Agreement
dated as of November 1, 2006 (the “Repurchase Agreement”), among Buyer and Seller,
and to take such other steps as may be necessary or desirable to enforce Buyer’s
rights against such Purchased Assets, the related Purchased Asset Files and the
Servicing Records to the extent that Seller is permitted by law to act through
an agent.


TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER
HEREBY AGREES THAT ANY THIRD PARTY RECEIVING A DULY EXECUTED COPY OR FACSIMILE
OF THIS INSTRUMENT MAY ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF
SHALL BE INEFFECTIVE AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTICE OR
KNOWLEDGE OR SUCH REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH
THIRD PARTY, AND SELLER ON ITS OWN BEHALF AND ON BEHALF OF SELLER’S ASSIGNS,
HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND
AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON OF
SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.


IN WITNESS WHEREOF Seller has caused this Power of
Attorney to be executed as a deed this [    ] day of
November, 2006.


	
  

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 











EXHIBIT VI


REPRESENTATIONS
AND WARRANTIES

REGARDING EACH INDIVIDUAL PURCHASED ASSET

THAT IS A WHOLE MORTGAGE LOAN, A-NOTE OR

SENIOR PARTICIPATION INTEREST


(a)           As applicable, each Purchased Asset
is either a whole loan and not a participation interest in a whole loan, a
senior participation interest in a whole loan, or an A-note interest in a
whole loan.  The sale of the Purchased
Assets to Buyer or its designee does not require Seller to obtain any
governmental or regulatory approval or consent that has not been obtained.


(b)           No Purchased Asset is 30 days or more
delinquent in payment of principal and interest (without giving effect to any
applicable grace period) and no Purchased Asset has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.


(c)           Except with respect to the ARD Loans,
which provide that the rate at which interest accrues thereon increases after
the Anticipated Repayment Date, the Purchased Assets (exclusive of any default
interest, late charges or prepayment premiums) are fixed rate mortgage loans or
floating rate mortgage loans with terms to maturity, at origination or as of
the most recent modification, as set forth in the Purchased Asset Schedule.


(d)           The information pertaining to each
Purchased Asset set forth on the Purchased Asset Schedule is true and correct
in all material respects as of the Purchase Date.


(e)           At the time of the assignment of the
Purchased Assets to Buyer, Seller had good and marketable title to and was the
sole owner and holder of, each Purchased Asset, free and clear of any pledge,
lien, encumbrance or security interest and such assignment validly and
effectively transfers and conveys all legal and beneficial ownership of the
Purchased Assets to Buyer free and clear of any pledge, lien, encumbrance or
security interest, subject to the rights and obligations of Seller pursuant to
the Agreement.


(f)            In respect of each Purchased Asset,
(A) the related Mortgagor is an entity organized under the laws of a state of
the United States of America, the District of Columbia or the Commonwealth of
Puerto Rico and (B) the Mortgagor is not a debtor in any bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
similar proceeding.


(g)           Each Purchased Asset is secured by
(or in the case of a Participation, the Underlying Mortgage Loan is secured by)
a Mortgage that establishes and creates a valid and subsisting first priority
lien on the related underlying real estate directly or indirectly securing or
supporting such Purchased 











Asset, or leasehold interest therein, comprising real
estate (the “Mortgaged Property”),
free and clear of any liens, claims, encumbrances, participation interests,
pledges, charges or security interests subject only to Permitted
Encumbrances.  Such Mortgage, together
with any separate security agreement, UCC Financing Statement or similar
agreement, if any, establishes and creates a first priority security interest
in favor of Seller in all personal property owned by the Mortgagor that is used
in, and is reasonably necessary to, the operation of the related Mortgaged
Property and, to the extent a security interest may be created therein and
perfected by the filing of a UCC Financing Statement under the Uniform
Commercial Code as in effect in the relevant jurisdiction, the proceeds arising
from the Mortgaged Property and other collateral securing such Purchased Asset,
subject only to Permitted Encumbrances. 
There exists with respect to such Mortgaged Property an assignment of
leases and rents provision, either as part of the related Mortgage or as a
separate document or instrument, which establishes and creates a first priority
security interest in and to leases and rents arising in respect of the related
Mortgaged Property subject only to Permitted Encumbrances.  No person other than the related Mortgagor
and the mortgagee owns any interest in any payments due under the related
leases.  The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Purchased Asset Documents.  As of the
origination date, there are no mechanics’ or other similar liens or claims that
have been filed for work, labor or materials affecting the related Mortgaged
Property that are or may be prior or equal to the lien of the Mortgage, except
those that are insured against pursuant to the applicable Title Insurance
Policy (as defined below). As of the Purchase Date, there are no mechanics’ or
other similar liens or claims that have been filed for work, labor or materials
affecting the related Mortgaged Property that are or may be prior or equal in
priority to the lien of the Mortgage, except those that are insured against
pursuant to the applicable Title Policy (as defined below).  No (a) Mortgaged Property secures any
mortgage loan not represented on the Purchased Asset Schedule, (b) Purchased Asset
is cross-defaulted with any other mortgage loan, other than a Mortgage
Loan listed on the Purchased Asset Schedule, or (c) Purchased Asset is secured
by property that is not a Mortgaged Property.


(h)           The related Mortgagor under each
Purchased Asset has good and indefeasible fee simple or, with respect to those
Purchased Assets described in clause (cc) hereof, leasehold title to the
related Mortgaged Property comprising real estate subject to any Permitted
Encumbrances.


(i)            Seller has received an American Land
Title Association (ALTA) lender’s title insurance policy or a comparable form
of lender’s title insurance policy (or escrow instructions binding on the Title
Insurer (as defined below) and irrevocably obligating the Title Insurer to
issue such title insurance policy, a title policy commitment or pro-forma
“marked up” at
the closing of the related 











Purchased Asset and countersigned by the Title Insurer
or its authorized agent) as adopted in the applicable jurisdiction (the “Title Policy”), which
was issued by a nationally recognized title insurance company (the “Title Insurer”)
qualified to do business in the jurisdiction where the applicable Mortgaged
Property is located, covering the portion of each Mortgaged Property comprised
of real estate and insuring that the related Mortgage is a valid first lien in
the original principal amount of the related Purchased Asset on the Mortgagor’s
fee simple interest (or, if applicable, leasehold interest) in such Mortgaged
Property comprised of real estate subject only to Permitted Encumbrances.  Such Title Policy was issued in connection
with the origination of the related Purchased Asset. No claims have been made
under such Title Policy.  Such Title
Policy is in full force and effect and all premiums thereon have been paid and
will provide that the insured includes the owner of the Purchased Asset and its
successors and/or assigns. No holder of the related Mortgage has done, by act
or omission, anything that would, and Seller has no actual knowledge of any
other circumstance that would, impair the coverage under such Title Policy.


(j)            The related Assignment of Mortgage
and the related assignment of the Assignment of Leases and Rents executed in
connection with each Mortgage, if any, have been recorded in the applicable
jurisdiction (or, if not recorded, have been submitted for recording or are in
recordable form) and constitute the legal, valid and binding assignment of such
Mortgage and the related assignment of leases and rents from Seller to
Buyer.  The endorsement of the related
Mortgage Note by Seller constitutes the legal, valid, binding and enforceable
(except as such enforcement may be limited by anti-deficiency laws or
bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium 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)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of assignment of leases and rents, legally and validly
conveys all right, title and interest in such Purchased Asset and (except in
the case of an A Note or a Participation) the Purchased Asset Documents to
Buyer.


(k)           The Purchased Asset Documents for
each Purchased Asset (or in the case of a Participation, the Underlying
Mortgage Loan) provide that such Purchased Asset (or Underlying Mortgage Loan)
is non-recourse except that the related Mortgagor and at least one
individual or entity shall be fully liable for actual losses, liabilities,
costs and damages arising from at least the following acts of the related
Mortgagor and/or its principals: (i) fraud or material misrepresentation, (ii)
misapplication or misappropriation of rents, insurance proceeds or condemnation
awards, (iii) any act of actual waste, and (iv) any breach of the environmental
covenants contained in the related Purchased Asset Documents.


(l)            The Purchased Asset Documents for
each Purchased Asset contain enforceable provisions such as to render the
rights and remedies of the holder 











thereof adequate for the practical realization against
the Mortgaged Property of the principal benefits of the security intended to be
provided thereby, including realization by judicial or, if applicable, non
judicial foreclosure, and there is no exemption available to the related
Mortgagor that would interfere with such right of foreclosure except (i) any
statutory right of redemption or (ii) any limitation arising under anti
deficiency laws or by bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium 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).


(m)          Each of the related Mortgage Notes and
Mortgages are the legal, valid and binding obligations of the related Mortgagor
named on the Purchased Asset Schedule and each of the other related Purchased
Asset Documents is the legal, valid and binding obligation of the parties
thereto (subject to any non recourse provisions therein), enforceable in
accordance with its terms, except as such enforcement may be limited by anti
deficiency laws or bankruptcy, receivership, conservatorship, reorganization,
insolvency, moratorium 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
except that certain provisions of such Purchased Asset Documents are or may be
unenforceable in whole or in part under applicable state or federal laws, but
the inclusion of such provisions does not render any of the Purchased Asset
Documents invalid as a whole, and such Purchased Asset Documents taken as a
whole are enforceable to the extent necessary and customary for the practical
realization of the principal rights and benefits afforded thereby.


(n)           The terms of the Purchased Assets or
the related Purchased Asset Documents, (including, in the case of a
Participation, the documents evidencing the Underlying Mortgage Loan) have not
been altered, impaired, modified or waived in any material respect, except
prior to the Purchase Date by written instrument duly submitted for
recordation, to the extent required, and as specifically set forth by a
document in the related Purchased Asset File.


(o)           With respect to each Mortgage that is
a deed of trust, a trustee, duly qualified under applicable law to serve as such,
currently so serves and is named in the deed of trust or has been substituted
in accordance with applicable law, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with a
trustee’s sale after default by the Mortgagor other than de minimis fees paid in connection with
the release of the related Mortgaged Property or related security for such
Purchased Asset following payment of such Purchased Asset in full.


(p)           No Purchased Asset has been satisfied,
canceled, subordinated, released or rescinded, in whole or in part, and the
related Mortgagor has not been 











released, in whole or in
part, from its obligations under any related Purchased Asset Document.


(q)           Except with respect to the
enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges, neither the Purchased Asset nor any of the related Purchased Asset
Documents is subject to any right of rescission, set-off, abatement,
diminution, valid counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of any such Purchased Asset Documents,
or the exercise (in compliance with procedures permitted under applicable law)
of any right thereunder, render any Purchased Asset Documents subject to any
right of rescission, set-off, abatement, diminution, valid counterclaim
or defense, including the defense of usury (subject to anti-deficiency or
one form of action laws and to bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditor’s rights generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law)), and no such right of rescission, set-off, abatement,
diminution, valid counterclaim or defense has been asserted with respect
thereto.  None of the Purchased Asset
Documents provides for a release of a portion of the Mortgaged Property from
the lien of the Mortgage except upon payment or defeasance in full of all
obligations under the Mortgage, provided that, notwithstanding the
foregoing, certain of the Purchased Assets may allow partial release (a) upon
payment or defeasance of an allocated loan amount which may be formula based,
but in no event less than 125% of the allocated loan amount, or (b) in the
event the portion of the Mortgaged Property being released was not given any
material value in connection with the underwriting or appraisal of the related
Purchased Asset.


(r)            As of the Purchase Date, there is no
payment default, giving effect to any applicable notice and/or grace period,
and there is no other material default under any of the related Purchased Asset
Documents, giving effect to any applicable notice and/or grace period; no such
material default or breach has been waived by Seller or on its behalf or, by
Seller’s predecessors in interest with respect to the Purchased Assets; and no
event has occurred that, with the passing of time or giving of notice would
constitute a material default or breach under the related Purchased Asset
Documents.  No Purchased Asset has been
accelerated and no foreclosure or power of sale proceeding has been initiated
in respect of the related Mortgage. 
Seller has not waived any material claims against the related Mortgagor
under any non-recourse exceptions contained in the Mortgage Note.


(s)           The principal amount of the Purchased
Asset stated on the Purchased Asset Schedule has been fully disbursed as of the
Purchase Date (except for certain amounts that were fully disbursed by the
mortgagee, but escrowed pursuant to the terms of the related Purchased Asset
Documents) and there are no future advances required to be made by the mortgagee
under any of the related Purchased Asset Documents.  Any requirements under the related 











Purchased Asset Documents regarding the completion of
any on-site or off-site improvements and to disbursements of any
escrow funds therefor have been or are being complied with or such escrow funds
are still being held.  The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not materially impaired by any improvements that have not been
completed.  Seller has not, nor, have any
of its agents or predecessors in interest with respect to the Purchased Assets,
in respect of such Purchased Asset, directly or indirectly, advanced funds or
induced, solicited or knowingly received any advance of funds by a party other
than the Mortgagor other than (a) interest accruing on such Purchased Asset
from the date of such disbursement of such Purchased Asset to the date which
preceded by thirty (30) days the first payment date under the related Mortgage
Note and (b) application and commitment fees, escrow funds, points and
reimbursements for fees and expenses, incurred in connection with the
origination and funding of the Purchased Asset.


(t)            No Purchased Asset has capitalized
interest included in its principal balance, or provides for any shared
appreciation rights or other equity participation therein and no contingent or
additional interest contingent on cash flow or, except for ARD Loans, negative
amortization accrues or is due thereon.


(u)           Each Purchased Asset identified in
the Purchased Asset Schedule as an ARD Loan substantially fully amortizes over
its stated term, which term is at least 60 months after the related Anticipated
Repayment Date.  Each ARD Loan has an
Anticipated Repayment Date not less than seven years following the origination
of such Purchased Asset.  If the related
Mortgagor elects not to prepay its ARD Loan in full on or prior to the
Anticipated Repayment Date pursuant to the existing terms of the Purchased
Asset or a unilateral option (as defined in Treasury Regulations under Article
1001 of the Code) in the Purchased Asset exercisable during the term of the
Mortgage Loan, (i) the Purchased Asset’s interest rate will step up to an
interest rate per annum as specified in the related Purchased Asset Documents; provided,
however, that payment of such Excess Interest shall be deferred until
the principal of such ARD Loan has been paid in full; (ii) all or a substantial
portion of the Excess Cash Flow collected after the Anticipated Repayment Date
shall be applied towards the prepayment of such ARD Loan and once the principal
balance of an ARD Loan has been reduced to zero all Excess Cash Flow will be
applied to the payment of accrued Excess Interest; and (iii) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test, the
subject debt service coverage ratio shall be calculated without taking account
of any increase in the related Mortgage Interest Rate on such Purchased Asset’s
Anticipated Repayment Date.  No ARD Loan
provides that the property manager for the related Mortgaged Property can be
removed by or at the direction of the mortgagee solely because of the passage
of the related Anticipated Repayment Date.


(v)           Each Purchased Asset identified in
the Purchased Asset Schedule as an ARD Loan with a hard lockbox requires that
tenants at the related 











Mortgaged Property shall (and each Purchased Asset
identified in the Purchased Asset Schedule as an ARD Loan with a springing
lockbox requires that tenants at the related Mortgaged Property shall, upon the
occurrence of a specified trigger event, including, but not limited to, the
occurrence of the related Anticipated Repayment Date) make rent payments into a
lockbox controlled by the holder of the Purchased Asset and to which the holder
of the Purchased Asset has a first perfected security interest; provided
however, with respect to each ARD Loan that is secured by a multi-family
property with a hard lockbox, or with respect to each ARD Loan that is secured
by a multi-family property with a springing lockbox, upon the occurrence
of a specified trigger event, including, but not limited to, the occurrence of
the related Anticipated Repayment Date, tenants either pay rents to a lockbox
controlled by the holder of the Mortgage Loan or deposit rents with the
property manager who will then deposit the rents into a lockbox controlled by
the holder of the Purchased Asset.


(w)          The terms of the Purchased Asset
Documents evidencing such Purchased Asset comply in all material respects with
all applicable local, state and federal laws, and regulations and Seller has
complied with all material requirements pertaining to the origination, funding
and servicing of the Purchased Assets, including but not limited to, usury and
any and all other material requirements of any federal, state or local law to
the extent non-compliance would have a Material Adverse Effect on the
Purchased Asset.


(x)            The related Mortgaged Property is,
in all material respects, in compliance with, and is used and occupied in
accordance with, all restrictive covenants of record applicable to such
Mortgaged Property and applicable zoning laws and all inspections, licenses,
permits and certificates of occupancy required by law, ordinance or regulation
to be made or issued with regard to the Mortgaged Property have been obtained
and are in full force and effect, except to the extent (a) any material non-compliance
with applicable zoning laws is insured by an ALTA lender’s title insurance
policy (or binding commitment therefor), or the equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy, or (b) the
failure to obtain or maintain such inspections, licenses, permits or
certificates of occupancy does not materially impair or materially and
adversely affect the use and/or operation of the Mortgaged Property as it was
used and operated as of the date of origination of the Purchased Asset or the
rights of a holder of the related Purchased Asset.


(y)           All (a) taxes, water charges, sewer
rents, assessments or other similar outstanding governmental charges and
governmental assessments that became due and owing prior to the Purchase Date
in respect of the related Mortgaged Property (excluding any related personal
property), and that if left unpaid, would be, or might become, a lien on such
Mortgaged Property having priority over the related Mortgage and (b) insurance
premiums or ground rents that became due and owing prior to the Purchase Date
in respect of the related Mortgaged Property (excluding any related personal
property), have been paid, or if any such items are disputed, an escrow of
funds in an amount sufficient 











(together with escrow payments required to be made
prior to delinquency) to cover such taxes and assessments and any late charges
due in connection therewith has been established.  As of the date of origination, the related
Mortgaged Property consisted of one or more separate and complete tax
parcels.  For purposes of this representation
and warranty, the items identified herein shall not be considered due and owing
until the date on which interest or penalties would be first payable thereon.


(z)            None of the improvements that were
included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of the origination of such Purchased Asset lies
outside the boundaries and building restriction lines of such Mortgaged
Property, except to the extent that they are legally nonconforming as contemplated
by the representation in clause (48) below, and no improvements on adjoining
properties encroach upon such Mortgaged Property, with the exception in each
case of (a) immaterial encroachments that do not materially adversely affect
the security intended to be provided by the related Mortgage or the use,
enjoyment, value or marketability of such Mortgaged Property or (b)
encroachments affirmatively covered by the related Title Policy.  With respect to each Purchased Asset, the
property legally described in the survey, if any, obtained for the related
Mortgaged Property for purposes of the origination thereof is the same as the
property legally described in the Mortgage.


(aa)         As of the date of the applicable
engineering report (which was performed within 12 months prior to the Purchase
Date) related to the Mortgaged Property and, as of the Purchase Date, the
related Mortgaged Property is either (i) in good repair, free and clear of any
damage that would materially adversely affect the value of such Mortgaged Property
as security for such Purchased Asset or the use and operation of the Mortgaged
Property as it was being used or operated as of the origination date or (ii)
escrows in an amount consistent with the standard utilized by Seller with
respect to similar loans it holds for its own account have been established,
which escrows will in all events be not less than 100% of the estimated cost of
the required repairs.  The Mortgaged
Property has not been damaged by fire, wind or other casualty or physical
condition (including, without limitation, any soil erosion or subsidence or
geological condition), which damage has not either been fully repaired or fully
insured, or for which escrows in an amount consistent with the standard
utilized by Seller with respect to loans it holds for its own account have not
been established.


(bb)         There are no proceedings pending or
threatened, for the partial or total condemnation of the relevant Mortgaged
Property.


(cc)         The Purchased Assets that are
identified as being secured in whole or in part by a leasehold estate (a “Ground Lease”) (except
with respect to any Purchased Asset also secured by the related fee interest in
the Mortgaged Property), satisfy the following conditions:


 















 


I.                                         such
Ground Lease or a memorandum thereof has been or will be duly recorded; such
Ground Lease, or other agreement received by the originator of the Purchased
Asset from the ground lessor, provides that the interest of the lessee
thereunder may be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or
assigns, in a manner that would materially and adversely affect the security
provided by the Mortgage; as of the date of origination of the Purchased Asset
(or in the case of a Participation, the Underlying Mortgage Loan), there was no
material change of record in the terms of such Ground Lease with the exception
of written instruments that are part of the related Purchased Asset File and
there has been no material change in the terms of such Ground Lease since the
recordation of the related Purchased Asset, with the exception of written
instruments that are part of the related Purchased Asset File;


II.                                     such
Ground Lease is not subject to any liens or encumbrances superior to, or of
equal priority with, the related Mortgage, other than the related fee interest
and Permitted Encumbrances and such Ground Lease is, and shall remain, prior to
any mortgage or other lien upon the related fee interest unless a
nondisturbance agreement is obtained from the holder of any mortgage on the fee
interest that is assignable to or for the benefit of the related lessee and the
related mortgagee;


III.                                 such
Ground Lease provides that upon foreclosure of the related Mortgage or
assignment of the Mortgagor’s interest in such Ground Lease in lieu thereof,
the mortgagee under such Mortgage is entitled to become the owner of such
interest upon notice to, but without the consent of, the lessor thereunder and,
in the event that such mortgagee becomes the owner of such interest, such
interest is further assignable by such mortgagee and its successors and assigns
upon notice to such lessor, but without a need to obtain the consent of such
lessor;


IV.                                 such
Ground Lease is in full force and effect and no default of tenant or ground
lessor was in existence at origination, or is currently in existence under such
Ground Lease, nor at origination was, or is there any condition that, but for
the passage of time or the giving of notice, would result in a default under
the terms of such Ground Lease; either such Ground Lease or a separate
agreement contains the ground lessor’s covenant that it shall not amend,
modify, cancel or terminate such Ground Lease without the prior written consent
of the mortgagee under such Mortgage and any amendment, modification,
cancellation or termination of the Ground Lease without the prior written
consent of the related 











mortgagee, or its successors or assigns is not binding
on such mortgagee, or its successor or assigns;


V.                                     such
Ground Lease or other agreement requires the lessor thereunder to give written
notice of any material default by the lessee to the mortgagee under the related
Mortgage, provided that such mortgagee has provided the lessor with
notice of its lien in accordance with the provisions of such Ground Lease; and
such Ground Lease or other agreement provides that no such notice of default
and no termination of the Ground Lease in connection with such notice of
default shall be effective against such mortgagee unless such notice of default
has been given to such mortgagee and any related Ground Lease contains the
ground lessor’s covenant that it will give to the related mortgagee, or its
successors or assigns, any notices it sends to the Mortgagor;


VI.                                 either
(i) the related ground lessor has subordinated its interest in the related
Mortgaged Property to the interest of the holder of the Purchased Asset (or in
the case of a Participation, the Underlying Mortgage Loan) or (ii) such Ground
Lease or other agreement provides that (A) the mortgagee under the related
Mortgage is permitted a reasonable opportunity to cure any default under such
Ground Lease that is curable, including reasonable time to gain possession of
the interest of the lessee under the Ground Lease, after the receipt of notice
of any such default before the lessor thereunder may terminate such Ground
Lease; (B) in the case of any such default that is not curable by such
mortgagee, or in the event of the bankruptcy or insolvency of the lessee under
such Ground Lease, such mortgagee has the right, following termination of the
existing Ground Lease or rejection thereof by a bankruptcy trustee or similar
party, to enter into a new ground lease with the lessor on substantially the
same terms as the existing Ground Lease; and (C) all rights of the Mortgagor
under such Ground Lease may be exercised by or on behalf of such mortgagee
under the related Mortgage upon foreclosure or assignment in lieu of
foreclosure;


VII.                             such
Ground Lease has an original term (or an original term plus one or more
optional renewal terms that under all circumstances may be exercised, and will
be enforceable, by the mortgagee or its assignee) that extends not less than 20
years beyond the stated maturity date of the related Purchased Asset (or in the
case of a Participation, of the Underlying Mortgage Loan);


VIII.                         under the
terms of such Ground Lease and the related Mortgage, taken together, any
related insurance proceeds will be applied either to the repair or restoration
of all or part of the related 











Mortgaged Property, with the mortgagee under such
Mortgage or a financially responsible institution acting as trustee appointed
by it, or consented to by it, or by the lessor having the right to hold and
disburse such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a prudent
institutional lender), or to the payment in whole or in part of the outstanding
principal balance of such Purchased Asset together with any accrued and unpaid
interest thereon; and


IX.                                such
Ground Lease does not impose any restrictions on subletting that would be
viewed as commercially unreasonable by Seller; such Ground Lease contains a
covenant (or applicable laws provide) that the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the possession,
interest or quiet enjoyment of any lessee in the relevant portion of such
Mortgaged Property subject to such Ground Lease for any reason, or in any
manner, which would materially adversely affect the security provided by the
related Mortgage.


(dd)         An Environmental Site Assessment
relating to each Mortgaged Property and prepared no earlier than 12 months
prior to the Purchase Date was obtained and reviewed by Seller in connection
with the origination of such Purchased Asset and a copy is included in the
Purchased Asset File.


(ee)         There are no adverse circumstances or
conditions with respect to or affecting the Mortgaged Property that would
constitute or result in a material violation of any applicable federal, state
or local environmental laws, rules and regulations (collectively, “Environmental Laws”),
other than with respect to a Mortgaged Property (i) for which environmental
insurance is maintained, or (ii) that would require (x) any expenditure less
than or equal to 5% of  the outstanding
principal balance of the Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws or (y) any expenditure greater
than 5% of the outstanding principal balance of such Purchased Asset to achieve
or maintain compliance in all material respects with any Environmental Laws for
which, in connection with this clause (y), adequate sums, but in no event less
than 125% of the estimated cost as set forth in the Environmental Site
Assessment, were reserved in connection with the origination of the Purchased
Asset and for which the related Mortgagor has covenanted to perform, or (iii)
as to which the related Mortgagor or one of its affiliates is currently taking
or required to take such actions, if any, with respect to such conditions or
circumstances as have been recommended by the Environmental Site Assessment or
required by the applicable Governmental Authority, or (iv) as to which another
responsible party not related to the Mortgagor with assets reasonably estimated
by Seller at the time of origination to be sufficient to effect all necessary
or required remediation identified in a notice or other action from the
applicable Governmental Authority 











is currently taking or required to take such actions,
if any, with respect to such regulatory authority’s order or directive, or (v)
as to which the conditions or circumstances identified in the Environmental
Site Assessment were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation, or (vi) as to which a party with financial resources reasonably
estimated to be adequate to cure the condition or circumstance that would give
rise to such material violation provided a guarantee or indemnity to the
related Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which the
related Mortgagor or other responsible party obtained a “No Further Action”
letter or other evidence reasonably acceptable to a prudent commercial mortgage
lender that applicable federal, state, or local Governmental Authorities had no
current intention of taking any action, and are not requiring any action, in
respect of such condition or circumstance, or (viii) that would not require
substantial cleanup, remedial action or other extraordinary response under any
Environmental Laws reasonably estimated to cost in excess of 5% of the
outstanding principal balance of such Purchased Asset;


(ff)           Except for any hazardous materials
being handled in accordance with applicable Environmental Laws, (A) there
exists either (i) environmental insurance with respect to such Mortgaged
Property or (ii) an amount in an escrow account pledged as security for such
Purchased Asset under the relevant Purchased Asset Documents equal to no less
than 125% of the amount estimated in such Environmental Site Assessment as
sufficient to pay the cost of such remediation or other action in accordance
with such Environmental Site Assessment or (B) one of the statements set forth
in clause (A)(ii) above is true, (i) such Mortgaged Property is not being used
for the treatment or disposal of hazardous materials; (ii) no hazardous
materials are being used or stored or generated for off-site disposal or
otherwise present at such Mortgaged Property other than hazardous materials of
such types and in such quantities as are customarily used or stored or
generated for off-site disposal or otherwise present in or at properties
of the relevant property type; and (iii) such Mortgaged Property is not subject
to any environmental hazard (including, without limitation, any situation
involving hazardous materials) that under the Environmental Laws would have to
be eliminated before the sale of, or that could otherwise reasonably be
expected to adversely affect in more than a de
minimis manner the value or marketability of, such Mortgaged
Property.


(gg)         The related Mortgage or other Purchased
Asset Documents contain covenants on the part of the related Mortgagor
requiring its compliance with any present or future federal, state and local
Environmental Laws and regulations in connection with the Mortgaged
Property.  The related Mortgagor (or an
affiliate thereof) has agreed to indemnify, defend and hold Seller, and its
successors and assigns (or in the case of a Participation, the lender of
record), harmless from and against any and all losses, liabilities, damages,
penalties, fines, expenses and claims of whatever kind or nature (including
attorneys’ fees and costs) imposed upon or incurred by or asserted against any
such party resulting from a breach of 











the environmental representations, warranties or
covenants given by the related Mortgagor in connection with such Purchased
Asset.


(hh)         For each of the Purchased Assets that
is covered by environmental insurance, each environmental insurance policy is
in an amount equal to 125% of the outstanding principal balance of the related
Purchased Asset and has a term ending no sooner than the date that is five
years after the maturity date (or, in the case of an ARD Loan, the final maturity
date) of the related Purchased Asset. 
All environmental assessments or updates that were in the possession of
Seller and that relate to a Mortgaged Property as being insured by an
environmental insurance policy have been delivered to or disclosed to the
environmental insurance carrier issuing such policy prior to the issuance of
such policy.


(ii)           As of the date of origination of the
related Purchased Asset, and, as of the Purchase Date, the Mortgaged Property
is covered by insurance policies providing the coverage described below and the
Purchased Asset Documents permit the mortgagee to require the coverage
described below.  All premiums with
respect to the insurance policies insuring each Mortgaged Property have been
paid in a timely manner or escrowed to the extent required by the Purchased
Asset Documents, and Seller has not received any notice of cancellation or
termination.  The relevant Purchased
Asset File contains the insurance policy required for such Purchased Asset or a
certificate of insurance for such insurance policy.  Each Mortgage requires that the related
Mortgaged Property and all improvements thereon be covered by insurance
policies providing (a) coverage in the amount of the lesser of full replacement
cost of such Mortgaged Property and the outstanding principal balance of the
related Purchased Asset (subject to customary deductibles) for fire and
extended perils included within the classification “All Risk of Physical Loss”
in an amount sufficient to prevent the Mortgagor from being deemed a co-insurer
and to provide coverage on a full replacement cost basis of such Mortgaged
Property (in some cases exclusive of foundations and footings) with an agreed
amount endorsement to avoid application of any coinsurance provision; such
policies contain a standard mortgagee clause naming mortgagee and its successor
in interest as additional insureds or loss payee, as applicable; (b) business
interruption or rental loss insurance in an amount at least equal to (i) 12
months of operations or (ii) in some cases all rents and other amounts
customarily insured under this type of insurance of the Mortgaged Property; (c)
flood insurance (if any portion of the improvements on the Mortgaged Property
is located in an area identified by the Federal Emergency Management Agency (“FEMA”), with respect
to certain Purchased Assets and the Secretary of Housing and Urban Development
with respect to other Mortgage Loans, as having special flood hazards) in an
amount not less than amounts prescribed by FEMA; (d) workers’ compensation, if
required by law; (e) comprehensive general liability insurance in an amount
equal to not less than $1,000,000; all such insurance policies contain clauses
providing they are not terminable and may not be terminated without thirty (30)
days prior written notice to the mortgagee (except where applicable law
requires a shorter period or except for nonpayment of premiums, in which case
not less than ten 











(10) days prior written notice to the mortgagee is
required).  In addition, each Mortgage
permits the related mortgagee to make premium payments to prevent the
cancellation thereof and shall entitle such mortgagee to reimbursement
therefor.  Any insurance proceeds in
respect of a casualty, loss or taking will be applied either to the repair or
restoration of all or part of the related Mortgaged Property or the payment of
the outstanding principal balance of the related Purchased Asset together with
any accrued interest thereon.  The
related Mortgaged Property is insured by an insurance policy, issued by an
insurer meeting the requirements of such Purchased Asset (or in the case of a
Participation, of the Underlying Mortgage Loan) and having a claims-paying
or financial strength rating of at least A:X from A.M. Best Company or “A” (or
the equivalent) from Standard & Poor’s Rating Services, Fitch, Inc. or
Moody’s Investor Services, Inc.  An
architectural or engineering consultant has performed an analysis of each of
the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate
the structural and seismic condition of such property, for the sole purpose of
assessing the probable maximum loss (“PML”) for the Mortgaged Property in the event of
an earthquake.  In such instance, the PML
was based on a return period of not less than 100 years, an exposure period of
50 years and a 10% probability of exceedence. 
If the resulting report concluded that the PML would exceed 20% of the
amount of the replacement costs of the improvements, earthquake insurance on
such Mortgaged Property was obtained by an insurer rated at least A:X by A.M.
Best Company or “A” (or the equivalent) from Standard & Poor’s Rating
Services, Fitch, Inc. or Moody’s Investor Services, Inc.  The insurer issuing each of the foregoing
insurance policies is qualified to write insurance in the jurisdiction where
the related Mortgaged Property is located.


(jj)           All amounts required to be deposited
by each Mortgagor at origination under the related Purchased Asset Documents
have been deposited at origination and there are no deficiencies with regard
thereto.


(kk)         Whether or not a Purchased Asset was
originated by Seller, with respect to each Purchased Asset originated by Seller
and each Purchased Asset originated by any Person other than Seller, as of the
date of origination of the related Purchased Asset, and, with respect to each
Purchased Asset originated by Seller and any subsequent holder of the Purchased
Asset, as of the Purchase Date, there are no actions, suits, arbitrations or
governmental investigations or proceedings by or before any court or other
Governmental Authority or agency now pending against or affecting the Mortgagor
under any Purchased Asset or any of the Mortgaged Properties that, if
determined against such Mortgagor or such Mortgaged Property, would materially and
adversely affect the value of such Mortgaged Property, the security intended to
be provided with respect to the related Purchased Asset, or the ability of such
Mortgagor and/or the current use of such Mortgaged Property to generate net
cash flow to pay principal, interest and other amounts due under the related
Purchased Asset; and there are no such actions, suits or proceedings threatened
against such Mortgagor.











(ll)           Each Purchased Asset complied at
origination, in all material respects, with all of the terms, conditions and
requirements of Seller’s underwriting standards applicable to such Purchased
Asset and since origination, the Purchased Asset has been serviced in all
material respects in a legal manner in conformance with Seller’s servicing
standards.


(mm)       The originator of the Purchased Asset or
Seller has inspected or caused to be inspected each related Mortgaged Property
within the 12 months prior to the Purchase Date.


(nn)         The Purchased Asset Documents require
the Mortgagor to provide the holder of the Purchased Asset with at least annual
operating statements, financial statements and except for Purchased Assets for
which the related Mortgaged Property is leased to a single tenant, rent rolls.


(oo)         All escrow deposits and payments
required by the terms of each Purchased Asset are in the possession, or under
the control of Seller (or in the case of a Participation, the servicer of the
related Mortgage Loan), and all amounts required to be deposited by the
applicable Mortgagor under the related Purchased Asset Documents have been
deposited, and there are no deficiencies with regard thereto (subject to any
applicable notice and cure period).  All
of Seller’s interest in such escrows and deposits will be conveyed by Seller to
Buyer hereunder.


(pp)         Each Mortgagor with respect to a
Purchased Asset (and, for each Accommodation Loan, each Mortgagee thereunder)
is an entity whose organizational documents or related Purchased Asset
Documents provide that it is, and at least so long as the Purchased Asset is outstanding
will continue to be, a Single Purpose Entity. 
For this purpose, “Single Purpose Entity” shall mean a Person, other
than an individual, whose organizational documents provide that it shall engage
solely in the business of owning and operating the Mortgaged Property and that
does not engage in any business unrelated to such property and the financing
thereof, does not have any assets other than those related to its interest in
the Mortgaged Property or the financing thereof or any indebtedness other than
as permitted by the related Mortgage or other Purchased Asset Documents, and
the organizational documents of which require that it have its own separate
books and records and its own accounts, in each case that are separate and
apart from the books and records and accounts of any other Person, except as
permitted by the related Mortgage or other Purchased Asset Documents.


(qq)         Each of the Purchased Assets contain a “due
on sale” clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Purchased Asset (or in the case of an A Note or
a Participation, of the related Mortgage Loan) if, without the prior written
consent of the holder of the Purchased Asset (or in the case of an A Note or a
Participation, of the holder of title to the Underlying Mortgage Loan), the
property subject to the Mortgage, or any controlling interest therein, is
directly or indirectly transferred or sold (except that it may provide for
transfers by devise, descent or operation of law upon the death of a member,
manager, general partner or shareholder of a Mortgagor and that it may provide
for assignments subject to the Purchased Asset holder’s approval of transferee,
transfers to affiliates, transfers to family members for estate planning purposes,
transfers among existing members, partners or shareholders in Mortgagors or
transfers of passive interests so long as the key principals or general partner
retains control).  The Purchased Asset
Documents contain a “due on encumbrance” clause, which provides for the
acceleration of the payment of the unpaid principal balance of the Purchased
Asset if the property subject to the Mortgage or any controlling interest in
the Mortgagor is further pledged or encumbered, unless the prior written
consent of the holder of the Purchased Asset is obtained (except 











that it may provide for assignments subject to the
Purchased Asset holder’s approval of transferee, transfers to affiliates or
transfers of passive interests so long as the key principals or general partner
retains control).  The Mortgage requires
the Mortgagor to pay all reasonable fees and expenses associated with securing
the consent or approval of the holder of the Mortgage for a waiver of a “due on
sale” or “due on encumbrance” clause or a defeasance provision.  As of the Purchase Date, Seller holds no
preferred equity interest in any Mortgagor and Seller holds no mezzanine debt
related to such Mortgaged Property.


(rr)           Each Purchased Asset containing
provisions for defeasance of mortgage collateral requires either (a) the prior
written consent of, and compliance with the conditions set by, the holder of
the Purchased Asset to any defeasance, or (b)(i) the replacement collateral
consist of U.S. “government securities,” within the meaning of Treasury Regulations
Article 1.860 G-2(a)(8)(i), in an amount sufficient to make all scheduled
payments under the Mortgage Note when due (up to the maturity date for the
related Purchased Asset, the Anticipated Repayment Date for ARD Loans or the
date on which the Mortgagor may prepay the related Purchased Asset without
payment of any prepayment penalty); (ii) the loan may be assumed by a Single
Purpose Entity approved by the holder of the Purchased Asset; (iii) counsel
provide an opinion that the trustee has a perfected security interest in such
collateral prior to any other claim or interest; and (iv) such other documents
and certifications as the mortgagee may reasonably require, which may include,
without limitation, (A) a certification that the purpose of the defeasance is
to facilitate the disposition of the mortgaged real property or any other
customary commercial transaction and not to be part of an arrangement to
collateralize a REMIC offering with obligations that are not real estate
mortgages and (B) a certification from an independent certified public
accountant that the collateral is sufficient to make all scheduled payments
under the Mortgage Note when due.  Each
Purchased Asset containing provisions for defeasance provides that, in addition
to any cost associated with defeasance, the related Mortgagor shall pay, as of
the date the mortgage collateral is defeased, all scheduled and accrued
interest and principal due as well as an amount sufficient to defease in full
the Purchased Asset.  In addition, if the
related Purchased Asset permits defeasance, then the Mortgage Loan documents
provide that the related Mortgagor shall (x) pay all reasonable 











fees associated with the defeasance of the Purchased
Asset and all other reasonable expenses associated with the defeasance, or (y)
provide all opinions required under the related Purchased Asset Documents,
including a REMIC opinion, and any applicable rating agency letters confirming
that no downgrade or qualification shall occur as a result of the defeasance.


(ss)         In the event that a Purchased Asset is
secured by more than one Mortgaged Property, then, in connection with a release
of less than all of such Mortgaged Properties, a Mortgaged Property may not be
released as collateral for the related Purchased Asset unless, in connection
with such release, an amount equal to not less than 125% of the Allocated Loan
Amount for such Mortgaged Property is prepaid or, in the case of a defeasance,
an amount equal to 125% of the Allocated Loan Amount is defeased through the deposit
of replacement collateral (as contemplated in clause (34) hereof) sufficient to
make all scheduled payments with respect to such defeased amount, or such
release is otherwise in accordance with the terms of the Purchased Asset
Documents.


(tt)           Each Mortgaged Property is owned in
fee by the related Mortgagor, with the exception of (i) Mortgaged Properties
that are secured in whole or in a part by a Ground Lease and (ii) out-parcels,
and is used and occupied for commercial or multifamily residential purposes in
accordance with applicable law.


(uu)         Any material non-conformity with
applicable zoning laws constitutes a legal non-conforming use or
structure that, in the event of casualty or destruction, may be restored or
repaired to the full extent of the use or structure at the time of such
casualty, or for which law and ordinance insurance coverage has been obtained
in amounts consistent with the standards utilized by Seller.


(vv)         Neither Seller nor any affiliate
thereof has any obligation to make any capital contributions to the related
Mortgagor under the Purchased Asset.  The
Purchased Asset was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.


(ww)       The following statements are true with
respect to the related Mortgaged Property: (a) the Mortgaged Property is
located on or adjacent to a dedicated road or has access to an irrevocable
easement permitting ingress and egress and (b) the Mortgaged Property is served
by public or private utilities, water and sewer (or septic facilities) and
otherwise appropriate for the use in which the Mortgaged Property is currently
being utilized.


(xx)          None of the Purchased Asset Documents
contain any provision that expressly excuses the related borrower from
obtaining and maintaining insurance coverage for acts of terrorism and, in
circumstances where terrorism insurance is not expressly required, the
mortgagee is not prohibited from requesting that the related borrower maintain
such insurance, in each case, to the extent such insurance coverage is
generally available for like properties in such 











jurisdictions at commercially reasonable rates. Each
Mortgaged Property is insured by an “all-risk” casualty insurance policy
that does not contain an express exclusion for (or, alternatively, is covered
by a separate policy that insures against property damage resulting from) acts
of terrorism.


(yy)         An appraisal of the related Mortgaged
Property was conducted in connection with the origination of such Purchased
Asset (or in the case of a Participation, the date of origination of the
Underlying Mortgage Loan), and such appraisal satisfied the guidelines in Title
XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989,
in either case as in effect on the date such Purchased Asset (or in the case of
a Participation, the Underlying Mortgage Loan) was originated.


Defined Terms


As used in this Exhibit:


The term “Allocated Loan Amount”
shall mean, for each Mortgaged Property, the portion of principal of the
related Purchased Asset allocated to such Mortgaged Property for certain
purposes (including determining the release prices of properties, if permitted)
under such Purchased Asset as set forth in the related loan documents.  There can be no assurance, and it is
unlikely, that the Allocated Loan Amounts represent the current values of
individual Mortgaged Properties, the price at which an individual Mortgaged
Property could be sold in the future to a willing buyer or the replacement cost
of the Mortgaged Properties.


The term “Anticipated Repayment Date”
shall mean, with respect to any Purchased Asset that is indicated on the
Purchased Asset Schedule as having a Revised Rate, the date upon which such
Purchased Asset commences accruing interest at such Revised Rate.


The term “Assignment of Leases”
shall have the meaning specified in paragraph 10 of this Exhibit VI.


The term “Assignment of Mortgage”
shall mean, with respect to any Mortgage, an assignment of the mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related property is located to reflect the
assignment and pledge of the Mortgage, subject to the terms, covenants and
provisions of this Agreement.


The term “ARD Loan” shall mean
any Purchased Asset that provides that if the unamortized principal balance
thereof is not repaid on its Anticipated Repayment Date, such Purchased Asset
will accrue Excess Interest at the rate specified in the related Mortgage Note
and the Mortgagor is required to apply excess monthly cash flow generated by
the related Mortgaged Property to the repayment of the outstanding principal
balance on such Purchased Asset.


The term “Due Date” shall mean
the day of the month set forth in the related Mortgage Note on which each
monthly payment of interest and/or principal thereon is scheduled to be first
due.


 















The term “Environmental Site Assessment”
shall mean a Phase I environmental report meeting the requirements of the
American Society for Testing and Materials, and, if in accordance with
customary industry standards a reasonable lender would require it, a Phase II
environmental report, each prepared by a licensed third party professional
experienced in environmental matters.


The term “Excess Cash Flow”
shall mean the cash flow from the Mortgaged Property securing an ARD Loan after
payments of interest (at the Mortgage Interest Rate) and principal (based on
the amortization schedule), and (a) required payments for the tax and insurance
fund and ground lease escrows fund, (b) required payments for the monthly debt
service escrows, if any, (c) payments to any other required escrow funds and
(d) payment of operating expenses pursuant to the terms of an annual budget
approved by the servicer and discretionary (lender approved) capital
expenditures.


The term “Excess Interest” shall
mean any accrued and deferred interest on an ARD Loan in accordance with the
following terms.  Commencing on the
respective Anticipated Repayment Date each ARD Loan (pursuant to its existing
terms or a unilateral option, as defined in Treasury Regulations under Article
1001 of the Code, in the Purchased Assets exercisable during the term of the
Purchased Asset) generally will bear interest at a fixed rate (the “Revised Rate”) per
annum equal to the Mortgage Interest Rate plus a percentage specified in the
related Mortgage Loan Documents.  Until
the principal balance of each such Purchased Asset has been reduced to zero
(pursuant to its existing terms or a unilateral option, as defined in Treasury
Regulations under Article 1001 of the Code, in the Purchased Assets exercisable
during the term of the Mortgage Loan), such Purchased Asset will only be
required to pay interest at the Mortgage Interest Rate and the interest accrued
at the excess of the related Revised Rate over the related Mortgage Interest
Rate will be deferred (such accrued and deferred interest and interest thereon,
if any, is “Excess Interest”).


The term “Mortgage Interest Rate”
shall mean the fixed rate, or the formula applicable to determine the floating
rate, of interest per annum that each Purchased Asset bears as of the Purchase
Date.


The term “Permitted Encumbrances”
shall mean:


I.                                         the
lien of current real property taxes, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties;


II.                                     covenants,
conditions and restrictions, rights of way, easements and other matters of
public record acceptable to mortgage lending institutions generally and
referred to in the related mortgagee’s title insurance policy;


III.                                 other
matters to which like properties are commonly subject and which are acceptable
to mortgage lending institutions generally, and


IV.                                 the
rights of tenants, as tenants only, whether under ground leases or space leases
at the Mortgaged Property











that together do not
materially and adversely affect the related Mortgagor’s ability to timely make
payments on the related Purchased Asset, which do not materially interfere with
the benefits of the security intended to be provided by the related Mortgage or
the use, for the use currently being made, the operation as currently being
operated, enjoyment, value or marketability of such Mortgaged Property, provided,
however, that, for the avoidance of doubt, Permitted Encumbrances shall
exclude all pari passu, second, junior and
subordinated mortgages but shall not exclude mortgages that secure Purchased
Assets that are cross-collateralized with other Purchased Assets.


The term “Revised Rate” shall
mean, with respect to those Purchased Assets on the Purchased Asset Schedule
indicated as having a revised rate, the increased interest rate after the Anticipated
Repayment Date (in the absence of a default) for each applicable Purchased
Asset, as calculated and as set forth in the related Purchased Asset.











REPRESENTATIONS
AND WARRANTIES

REGARDING EACH INDIVIDUAL PURCHASED ASSET

THAT IS A JUNIOR INTEREST

IN A PERFORMING COMMERCIAL

MORTGAGE LOAN SECURED BY A FIRST LIEN ON

A MULTIFAMILY OR COMMERCIAL PROPERTY


(a)           The representations and warranties
set forth in this Exhibit VI regarding the senior mortgage loan from
which the Purchased Asset is derived shall be deemed incorporated herein in
respect of such senior mortgage loan, provided, however, that, in
the event that such senior mortgage loan was not originated by Seller or an
Affiliate of Seller, Seller shall be deemed to be making the representations
set forth in this Exhibit VI with respect to such senior mortgage loan to the
best of Seller’s knowledge.


(b)           The information set forth in the
Purchased Asset Schedule is complete, true and correct in all material
respects.


(c)           There exists no material default, breach,
violation or event of acceleration (and no event that, with the passage of time
or the giving of notice, or both, would constitute any of the foregoing) under
the documents evidencing or securing the Purchased Asset, in any such case to
the extent the same materially and adversely affects the value of the Purchased
Asset and the related underlying real property.


(d)           Except with respect to the
enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges, neither the Purchased Asset nor any of the related Purchased Asset
Documents is subject to any right of rescission, set-off, abatement,
diminution, valid counterclaim or defense, including the defense of usury, nor
will the operation of any of the terms of any such Purchased Asset Documents,
or the exercise (in compliance with procedures permitted under applicable law)
of any right thereunder, render any Purchased Asset Documents subject to any
right of rescission, set-off, abatement, diminution, valid counterclaim
or defense, including the defense of usury (subject to anti-deficiency or
one form of action laws and to bankruptcy, receivership, conservatorship,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditor’s rights generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law)), and no such right of rescission, set-off, abatement, diminution,
valid counterclaim or defense has been asserted with respect thereto.


(e)           The Purchased Asset Documents have
been duly and properly executed by the originator of the Purchased Asset, and
each is the legal, valid and binding obligation of the parties thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, 











reorganization, receivership, moratorium or other laws
relating to or affecting the rights of creditors generally and by general principles
of equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law).  The Purchased
Asset is not usurious.


(f)            The terms of the related Purchased
Asset Documents have not been impaired, waived, altered or modified in any
material respect (other than by a written instrument that is included in the
related Purchased Asset File).


(g)           The assignment of the Purchased Asset
constitutes the legal, valid and binding assignment of such Purchased Asset
from Seller to or for the benefit of Buyer enforceable in accordance  with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).


(h)           All representations and warranties in
the Purchased Asset Documents and in the underlying documents for the
performing commercial mortgage loan secured by a first lien on a multifamily or
commercial property to which such Purchased Asset relates are true and correct
in all material respects.


(i)            The servicing and collection
practices used by Seller for the Purchased Asset have complied with applicable
law in all material respects and are consistent with those employed by prudent
servicers of comparable Purchased Assets.


(j)            Seller is not a debtor in any state
or federal bankruptcy or insolvency proceeding.


(k)           As of the Purchase Date, there is no
payment default, giving effect to any applicable notice and/or grace period,
and there is no other material default under any of the related Purchased Asset
Documents, giving effect to any applicable notice and/or grace period; no such
material default or breach has been waived by Seller or on its behalf or by
Seller’s predecessors in interest with respect to the Purchased Assets; and no
event has occurred that, with the passing of time or giving of notice would
constitute a material default or breach; provided, however, that the
representations and warranties set forth in this sentence do not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of any subject matter otherwise covered by any other representation
or warranty made by Seller in this Exhibit VI. 
No Purchased Asset has been accelerated and no foreclosure or power of
sale proceeding has been initiated in respect of the related Mortgage.  Seller has not waived any material claims
against the related Mortgagor under any non-recourse exceptions contained
in the Mortgage Note.











(l)            No Purchased Asset has been
satisfied, canceled, subordinated (except to the senior mortgage loan from
which the Purchased Asset is derived), released or rescinded, in whole or in
part, and the related Mortgagor has not been released, in whole or in part,
from its obligations under any related Purchased Asset Document.











REPRESENTATIONS
AND WARRANTIES

REGARDING EACH INDIVIDUAL PURCHASED ASSET

THAT IS A CMBS


(a)           The CMBS consists of pass-through
certificates representing beneficial ownership interests in one or more REMICs
consisting of one or more first lien mortgage loans secured by commercial
and/or multifamily properties.


(b)           Immediately prior to the sale,
transfer and assignment to Buyer thereof, Seller had good and marketable title
to, and was the sole owner and holder of, such CMBS, and Seller is transferring
such CMBS free and clear of any and all liens, pledges, encumbrances, charges,
security interests or any other ownership interests of any nature encumbering
such CMBS.


(c)           Seller has full right, power and
authority to sell and assign such CMBS and such CMBS has not been cancelled,
satisfied or rescinded in whole or part nor has any instrument been executed
that would effect a cancellation, satisfaction or rescission thereof.


(d)           Other than consents and approvals
obtained as of the related Purchase Date or those already granted in the
related documents governing such CMBS, no consent or approval by any Person is
required in connection with Buyer’s acquisition of such CMBS, for Buyer’s
exercise of any rights or remedies in respect of such CMBS or for Buyer’s sale
or other disposition of such CMBS.  No
third party holds any “right of first refusal”, “right of first negotiation”, “right
of first offer”, purchase option, or other similar rights of any kind, and no
other impediment exists to any such transfer or exercise of rights or remedies.


(e)           Upon consummation of the purchase
contemplated to occur in respect of such CMBS on the Purchase Date therefor,
Seller will have validly and effectively conveyed to Buyer all legal and
beneficial interest in and to such CMBS free and clear of any and all liens,
pledges, encumbrances, charges, security interests or any other ownership
interests of any nature.


(f)            The CMBS is a physical security in
registered form, or is in book-entry form and held through the facilities of
(a) The Depository Trust Corporation in New York, New York, or (b) another
clearing organization or book-entry system reasonably acceptable to Buyer.


(g)           With respect to any CMBS that is a
physical security, Seller has delivered to Buyer or its designee such physical
security, along with any and all certificates and assignments necessary to
transfer such security under the issuing documents of such CMBS.


(h)           With respect to any CMBS registered
with DTC or another clearing organization, Seller has delivered to Buyer or its
designee evidence of re-registration to the securities intermediary in Buyer’s
name on behalf of Buyer.











(i)            All information contained in the
related Purchased Asset File (or as otherwise provided to Buyer) in respect of
such CMBS is accurate and complete in all material respects.


(j)            As of the date of its issuance, such
CMBS complied in all material respects with, or was exempt from, all
requirements of federal, state or local law relating to the issuance thereof
including, without limitation, any registration requirements of the Securities
Act of 1933, as amended.


(k)           Except as included in the Purchased
Asset File, there is no document that by its terms modifies or affects the
rights and obligations of the holder of such CMBS, the terms of the related
pooling and servicing agreement or any other agreement relating to the CMBS,
and, since issuance, there has been no material change or waiver to any term or
provision of any such document, instrument or agreement.


(l)            There is no (i) monetary default,
breach or violation of any pooling and servicing agreement or other document
governing or pertaining to such CMBS, (ii) material non-monetary default,
breach or violation of any such agreement or other document or other document
governing or pertaining to such CMBS, or (iii) event that, with the passage of
time or with notice and the expiration of any grace or cure period, would
constitute a default, breach, violation or event of acceleration under such
documents and agreements.


(m)          No consent, approval, authorization or
order of, or registration or filing with, or notice to, any court or
governmental agency or body having jurisdiction or regulatory authority over
Seller is required for any transfer or assignment of such CMBS.


(n)           Except as included in the Purchased
Asset File, (i) no interest shortfalls have occurred and no realized losses
have been applied to any CMBS or otherwise incurred with respect to any
mortgage loan related to such CMBS nor any class of CMBS issued under the same
governing documents as any CMBS, and (ii) Seller has no knowledge of any
circumstances that could have a Material Adverse Effect on the CMBS.


(o)           With respect to CMBS backed by a
single mortgaged asset, there are no circumstances or conditions with respect
to the CMBS, the Underlying Mortgaged Property or the related Mortgagor’s
credit standing that can reasonably be expected to have a Material Adverse
Effect on the CMBS.


(p)           Seller has not received written
notice of any outstanding liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind for
which the holder of such CMBS is or may become obligated.











(q)           There is no material inaccuracy in
any servicer report or trustee report delivered to it (and, in turn, delivered
pursuant to the terms of this Agreement) in connection with such CMBS.


(r)            No servicer of the CMBS has made any
advances, directly or indirectly, with respect to the CMBS or to any mortgage
loan relating to such CMBS.











REPRESENTATIONS
AND WARRANTIES

REGARDING EACH INDIVIDUAL PURCHASED ASSET

THAT IS A CRE CDO


(a)           Immediately prior to the sale, transfer
and assignment to Buyer thereof, Seller had good and marketable title to, and
was the sole owner and holder of, such CRE CDO, and Seller is transferring such
CRE CDO free and clear of any and all liens, pledges, encumbrances, charges,
security interests or any other ownership interests of any nature encumbering
such CRE CDO.


(b)           Seller has full right, power and
authority to sell and assign such CRE CDO and such CRE CDO has not been
cancelled, satisfied or rescinded in whole or part nor has any instrument been
executed that would effect a cancellation, satisfaction or rescission thereof.


(c)           Other than consents and approvals
obtained as of the related Purchase Date or those already granted in the
related documents governing such CRE CDO, no consent or approval by any Person
is required in connection with Buyer’s acquisition of such CRE CDO, for Buyer’s
exercise of any rights or remedies in respect of such CRE CDO or for Buyer’s
sale or other disposition of such CRE CDO. 
No third party holds any “right of first refusal”, “right of first
negotiation”, “right of first offer”, purchase option, or other similar rights
of any kind, and no other impediment exists to any such transfer or exercise of
rights or remedies.


(d)           Upon consummation of the purchase
contemplated to occur in respect of such CRE CDO on the Purchase Date therefor,
Seller will have validly and effectively conveyed to Buyer all legal and
beneficial interest in and to such CRE CDO free and clear of any and all liens,
pledges, encumbrances, charges, security interests or any other ownership
interests of any nature.


(e)           The CRE CDO is a physical security in
registered form, or is in book-entry form and held through the facilities of
(a) The Depository Trust Corporation in New York, New York, or (b) another
clearing organization or book-entry system reasonably acceptable to Buyer.


(f)            With respect to any CRE CDO that is
a physical security, Seller has delivered to Buyer or its designee such
physical security, along with any and all certificates and assignments
necessary to transfer such security under the issuing documents of such CRE
CDO.


(g)           With respect to any CRE CDO
registered with DTC or another clearing organization, Seller has delivered to
Buyer or its designee evidence of re-registration to the securities
intermediary in Buyer’s name on behalf of Buyer.











(h)           All information contained in the
related Purchased Asset File (or as otherwise provided to Buyer) in respect of
such CRE CDO is accurate and complete in all material respects.


(i)            To the knowledge of Seller, as of
the date of its issuance, such CRE CDO complied in all material respects with,
or was exempt from, all requirements of federal, state or local law relating to
the issuance thereof including, without limitation, any registration requirements
of the Securities Act of 1933, as amended.


(j)            Except as included in the Purchased
Asset File, there is no document that by its terms modifies or affects the
rights and obligations of the holder of such CRE CDO, the terms of the related
pooling and servicing agreement or any other agreement relating to the CRE CDO,
and, since issuance, there has been no material change or waiver to any term or
provision of any such document, instrument or agreement.


(k)           There is no (i) monetary default,
breach or violation exists with respect to any pooling and servicing agreement,
indenture, or other document governing or pertaining to such CRE CDO, (ii)
material non-monetary default, breach or violation exists with respect to any
such agreement, indenture, or other document governing or pertaining to such
CRE CDO, or (iii) event that, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration under such documents and agreements.


(l)            No consent, approval, authorization
or order of, or registration or filing with, or notice to, any court or
governmental agency or body having jurisdiction or regulatory authority over
Seller is required for any transfer or assignment of such CRE CDO.


(m)          Except as included in the Purchased
Asset File, (i) no interest shortfalls have occurred and no realized losses
have been applied to any CRE CDO or otherwise incurred with respect to any
mortgage loan related to such CRE CDO nor any class of CRE CDO issued under the
same governing documents as any CRE CDO, and (ii) Seller has no knowledge of
any circumstances that could have a Material Adverse Effect on the CRE CDO.


(n)           Seller has not received written
notice of any outstanding liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind for
which the holder of such CRE CDO is or may become obligated.


(o)           There is no material inaccuracy in
any servicer report or trustee report delivered to it (and, in turn, delivered
pursuant to the terms of this Agreement) in connection with such CRE CDO.


(p)           No fraudulent acts were committed by
Seller in connection with its acquisition of such CRE CDO.


(q)           No servicer of the CRE CDO has made any
advances, directly or indirectly, with respect to the CRE CDO or to any
mortgage loan relating to such CRE CDO.















REPRESENTATIONS
AND WARRANTIES


RE:
PURCHASED ASSETS CONSISTING OF MEZZANINE LOANS


(a)                                  The
Mezzanine Loan is a performing mezzanine loan secured by a pledge of all of the
Capital Stock of a Mortgagor that owns income producing commercial real estate.


(b)                                 As
of the Purchase Date, such Mezzanine Loan complies in all material respects
with, or is exempt from, all requirements of federal, state or local law
relating to such Mezzanine Loan.


(c)                                  Immediately
prior to the sale, transfer and assignment to Buyer thereof, Seller had good
and marketable title to, and was the sole owner and holder of, such Mezzanine
Loan, and Seller is transferring such Mezzanine Loan free and clear of any and
all liens, pledges, encumbrances, charges, security interests or any other ownership
interests of any nature encumbering such Mezzanine Loan.  Upon consummation of the purchase
contemplated to occur in respect of such Mezzanine Loan on the Purchase Date
therefor, Seller will have validly and effectively conveyed to Buyer all legal
and beneficial interest in and to such Mezzanine Loan free and clear of any
pledge, lien, encumbrance or security interest.


(d)                                 No
fraudulent acts were committed by Seller in connection with its acquisition or
origination of such Mezzanine Loan nor were any fraudulent acts committed by
any Person in connection with the origination of such Mezzanine Loan.


(e)                                  All
information contained in the related Underwriting Package (or as otherwise
provided to Buyer) in respect of such Mezzanine Loan is accurate and complete
in all material respects.


(f)                                    Except
as included in the Underwriting Package, Seller is not a party to any document,
instrument or agreement, and there is no document, that by its terms modifies
or affects the rights and obligations of any holder of such Mezzanine Loan and
Seller has not consented to any material change or waiver to any term or
provision of any such document, instrument or agreement and no such change or
waiver exists.


(g)                                 Such
Mezzanine Loan is presently outstanding, the proceeds thereof have been fully
and properly disbursed and, except for amounts held in escrow by Seller, there
is no requirement for any future advances thereunder.


(h)                                 Seller
has full right, power and authority to sell and assign such Mezzanine Loan and
such Mezzanine Loan or any related Mezzanine Note has not been cancelled,
satisfied or rescinded in whole or part nor has any instrument been executed
that would effect a cancellation, satisfaction or rescission thereof.


(i)                                     Other
than consents and approvals obtained as of the related Purchase Date or those
already granted in the documentation governing such Mezzanine Loan (the “Mezzanine
Loan Documents”), no consent or approval by any Person is required in
connection with Seller’s sale and/or Buyer’s acquisition of such Mezzanine
Loan, for Buyer’s exercise of any rights or remedies in respect of such
Mezzanine Loan or for Buyer’s sale, pledge or other 











disposition of such Mezzanine Loan. 
No third party holds any “right of first refusal”, “right of first
negotiation”, “right of first offer”, purchase option, or other similar rights
of any kind, and no other impediment exists to any such transfer or exercise of
rights or remedies.


(j)                                     The
Mezzanine Collateral is secured by a pledge of equity ownership interests in
the related borrower under the Underlying Mortgage Loan or a direct or indirect
owner of the related borrower and the security interest created thereby has
been fully perfected in favor of Seller as Mezzanine Lender.


(k)                                  The
Underlying Property Owner has been duly organized and is validly existing and
in good standing under the laws of its jurisdiction of organization, with
requisite power and authority to own its assets and to transact the business in
which it is now engaged, the sole purpose of the Underlying Property Owner
under its organizational documents is to own, finance, sell or otherwise manage
the Properties and to engage in any and all activities related or incidental
thereto, and the Mortgaged Properties constitute the sole assets of the
Underlying Property Owner.


(l)                                     The
Underlying Property Owner has good and marketable title to the Underlying
Mortgaged Property, no claims under the title policies insuring the Underlying
Property Owner’s title to the Properties have been made, and the Underlying
Property Owner has not received any written notice regarding any material
violation of any easement, restrictive covenant or similar instrument affecting
the Underlying Mortgaged Property.


(m)                               The
representations and warranties made by the borrower (the “Mezzanine Borrower”)
in the Mezzanine Loan Documents were true and correct in all material respects
as of the date such representations and warranties were stated to be true
therein, and there has been no adverse change with respect to the Mezzanine
Loan, the Mezzanine Borrower, the Underlying Mortgaged Property or the
Underlying Property Owner that would render any such representation or warranty
not true or correct in any material respect as of the Purchase Date.


(n)                                 The
Mezzanine Loan Documents provide for the acceleration of the payment of the
unpaid principal balance of the Mezzanine Loan if (i) the related borrower
voluntarily transfers or encumbers all or any portion of any related Mezzanine
Collateral, or (ii) any direct or indirect interest in the related borrower is
voluntarily transferred or assigned, other than, in each case, as permitted
under the terms and conditions of the related loan documents.


(o)                                 Pursuant
to the terms of the Mezzanine Loan Documents: (a) no material terms of any
related Mortgage may be waived, canceled, subordinated or modified in any
material respect and no material portion of such Mortgage or the Underlying
Mortgaged Property may be released without the consent of the holder of the
Mezzanine Loan; (b) no material action may be taken by the Underlying Property
Owner with respect to the Underlying Mortgaged Property without the consent of
the holder of the Mezzanine Loan; (c) the holder of the Mezzanine Loan is
entitled to approve the budget of the Underlying Property Owner as it relates
to the Underlying Mortgaged Property; and (d) the holder of the Mezzanine Loan’s
consent is required prior to the Underlying Property Owner incurring any
additional indebtedness.











(p)                                 There
is no (i) monetary default, breach or violation with respect to such Mezzanine
Loan, the Underlying Mortgage Loan or any other obligation of the owner of the
Underlying Mortgaged Property (the “Underlying Property Owner”), (ii)
material non-monetary default, breach or violation with respect to such
Mezzanine Loan, the Underlying Mortgage Loan or any other obligation of the
Underlying Property Owner or (iii) event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration.


(q)                                 No
default or event of default has occurred under any agreement pertaining to any
lien or other interest that ranks pari passu with
or senior to the interests of the holder of such Mezzanine Loan or with respect
to any Underlying Mortgage Loan or other indebtedness in respect of the related
Underlying Mortgaged Property and there is no provision in any agreement
related to any such lien, interest or loan which would provide for any increase
in the principal amount of any such lien, other interest or loan.


(r)                                    Seller’s
security interest in the Mezzanine Loan is covered by a UCC-9 insurance policy
(the “UCC-9 Policy”) in the maximum principal amount of the Mezzanine
Loan insuring that the related pledge is a valid first priority lien on the collateral
pledged in respect of such Mezzanine Loan (the “Mezzanine Collateral”),
subject only to the exceptions stated therein (or a pro forma title policy or
marked up title insurance commitment on which the required premium has been
paid exists which evidences that such UCC-9 Policy will be issued), such UCC-9
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, no material claims have been made thereunder and no
claims have been paid thereunder, Seller has not done, by act or omission,
anything that would materially impair the coverage under the UCC-9 Policy and
as of the Purchase Date, the UCC-9 Policy (or, if it has yet to be issued, the
coverage to be provided thereby) will inure to the benefit of Buyer without the
consent of or notice to the insurer.


(s)                                  The
Mezzanine Loan, and each party involved in the origination of the Mezzanine
Loan, complied as of the date of origination with, or was exempt from,
applicable state or federal laws, regulations and other requirements pertaining
to usury.


(t)                                    Seller
has delivered to Buyer or its designee the original promissory note made in
respect of such Mezzanine Loan, together with an original assignment thereof
executed by Seller in blank.


(u)                                 Seller
has not received any written notice that the Mezzanine Loan may be subject to
reduction or disallowance for any reason, including without limitation, any
setoff, right of recoupment, defense, counterclaim or impairment of any kind.


(v)                                 Seller
has no obligation to make loans to, make guarantees on behalf of, or otherwise
extend credit to, or make any of the foregoing for the benefit of, the
Mezzanine Borrower or any other person under or in connection with the
Mezzanine Loan.


(w)                               The
servicing and collection practices used by the servicer of the Mezzanine Loan,
and the origination practices of the related originator, have been in all
respects legal, proper and prudent and have met customary industry standards by
prudent institutional 











commercial mezzanine lenders and mezzanine loan servicers except to the
extent that, in connection with its origination, such standards were modified
as reflected in the documentation delivered to Buyer.


(x)                                   If
applicable, the ground lessor consented to and acknowledged that (i) the
Mezzanine Loan is permitted / approved, (ii) any foreclosure of the
Mezzanine Loan and related change in ownership of the ground lessee will not
require the consent of the ground lessor or constitute a default under the
ground lease, (iii) copies of default notices would be sent to Mezzanine
Lender and (iv) it would accept cure from Mezzanine Lender on behalf of the
ground lessee.


(y)                                 To
the extent the Buyer was granted a security interest with respect to the
Mezzanine Loan, such interest (i) was given for due consideration, (ii) has
attached, (iii) is perfected, (iv) is a first priority Lien, and (v) has been
appropriately assigned to the Buyer by the Underlying Property Owner.


(z)                                   No
consent, approval, authorization or order of, or registration or filing with, or
notice to, any court or governmental agency or body having jurisdiction or
regulatory authority is required for any transfer or assignment by the holder
of such Mezzanine Loan.


(aa)                            Seller
has not received written notice of any outstanding liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind for which the holder of such Mezzanine Loan is or may
become obligated.


(bb)                          Seller
has not advanced funds, or knowingly received any advance of funds from a party
other than the borrower relating to such Mezzanine Loan, directly or
indirectly, for the payment of any amount required by such Mezzanine Loan.


(cc)                            All
real estate taxes and governmental assessments, or installments thereof, which
would be a lien on any related Underlying Mortgaged Property and that prior to
the Purchase Date for the related Purchased Asset have become delinquent in
respect of such Underlying Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established.  For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.


(dd)                          As
of the Purchase Date for the related Purchased Asset, each related Underlying
Mortgaged Property was free and clear of any material damage (other than
deferred maintenance for which escrows were established at origination) that
would affect materially and adversely the value of such Underlying Mortgaged
Property as security for the related Underlying Mortgage Loan and there was no
proceeding pending or, based solely upon the delivery of written notice thereof
from the appropriate condemning authority, threatened for the total or partial
condemnation of such Underlying Mortgaged Property.











(ee)                            As
of the Purchase Date of the Mezzanine Loan, all insurance coverage required
under the Mezzanine Loan Documents and/or any Mortgage Loan related to the
Underlying Mortgaged Property, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Underlying Mortgaged Property in the jurisdiction in which such Underlying
Mortgaged Property is located, and with respect to a fire and extended perils
insurance policy, is in an amount (subject to a customary deductible) at least
equal to the lesser of (i) the replacement cost of improvements located on such
Underlying Mortgaged Property, or (ii) the outstanding principal balance of the
Underlying Mortgage Loan, and in any event, the amount necessary to prevent
operation of any co-insurance provisions; and, except if such Underlying
Mortgaged Property is operated as a mobile home park, is also covered by
business interruption or rental loss insurance, in an amount at least equal to
12 months of operations of the related Underlying Mortgaged Property, all of
which was in full force and effect with respect to each related Underlying
Mortgaged Property; and, as of the Purchase Date for the related Purchased
Asset, all insurance coverage required under the Mezzanine Loan Documents
and/or any Underlying Mortgage Loan related to the Underlying Mortgaged
Property, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Underlying Mortgaged Property in the jurisdiction in which such Underlying
Mortgaged Property is located, is in full force and effect with respect to each
related Underlying Mortgaged Property; all premiums due and payable through the
Purchase Date for the related Purchased Asset have been paid; and no notice of
termination or cancellation with respect to any such insurance policy has been
received by Seller; and except for certain amounts not greater than amounts
which would be considered prudent by an institutional commercial and/or
multifamily mortgage lender with respect to a similar mortgage loan and which
are set forth in the Mezzanine Loan Documents and/or any Underlying Mortgage
Loan related to the Underlying Mortgaged Property, any insurance proceeds in
respect of a casualty loss, will be applied either (i) to the repair or
restoration of all or part of the related Underlying Mortgaged Property or (ii)
the reduction of the outstanding principal balance of the Underlying Mortgage
Loan, subject in either case to requirements with respect to leases at the
related Underlying Mortgaged Property and to other exceptions customarily
provided for by prudent institutional lenders for similar loans.  The Underlying Mortgaged Property is also
covered by comprehensive general liability insurance against claims for
personal and bodily injury, death or property damage occurring on, in or about
the related Underlying Mortgaged Property, in an amount customarily required by
prudent institutional lenders.  An
architectural or engineering consultant has performed an analysis of the
Underlying Mortgaged Properties located in seismic zone 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the sole
purpose of assessing the probable maximum loss (“PML”) for the
Underlying Mortgaged Property in the event of an earthquake.  In such instance, the PML was based on a 475
year lookback with a 10% probability of exceedance in a 50 year period.  If the resulting report concluded that the
PML would exceed 20% of the amount of the replacement costs of the
improvements, earthquake insurance on such Underlying Mortgaged Property was
obtained by an insurer rated at least A-:V by A.M. Best Company or “BBB-” (or
the equivalent) from S&P and Fitch or “Baa3” (or the equivalent) from Moody’s.  If the Underlying Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina such Underlying
Mortgaged Property is insured by 











windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Underlying Mortgage Loan and (ii)
100% of the full insurable value, or 100% of the replacement cost, of the
improvements located on the related Underlying Mortgaged Property.


(ff)                                The
insurance policies contain a standard Mortgagee clause naming the Mortgagee,
its successors and assigns as loss payee, in the case of a property insurance
policy, and additional insured in the case of a liability insurance policy and
provide that they are not terminable without 30 days prior written notice to
the Mortgagee (or, with respect to non-payment, 10 days prior written notice to
the Mortgagee) or such lesser period as prescribed by applicable law.  Each Mortgage requires that the Mortgagor
maintain insurance as described above or permits the Mortgagee to require
insurance as described above, and permits the Mortgagee to purchase such
insurance at the Mortgagor’s expense if Mortgagor fails to do so.


(gg)                          There
is no material and adverse environmental condition or circumstance affecting
the Underlying Mortgaged Property; there is no material violation of any
applicable Environmental Law with respect to the Underlying Mortgaged Property;
neither Seller nor the Underlying Property Owner has taken any actions which
would cause the Underlying Mortgaged Property not to be in compliance with all
applicable Environmental Laws; the Underlying Mortgage Loan documents require
the borrower to comply with all Environmental Laws; and each Mortgagor has
agreed to indemnify the Mortgagee for any losses resulting from any material,
adverse environmental condition or failure of the Mortgagor to abide by such
Environmental Laws or has provided environmental insurance.


(hh)                          No
borrower under the Mezzanine Loan nor any Mortgagor under any Underlying
Mortgage Loan is a debtor in any state or federal bankruptcy or insolvency
proceeding.


(ii)                                  Each
related Underlying Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.


(jj)                                  There
are no material violations of any applicable zoning ordinances, building codes
and land laws applicable to the Underlying Mortgaged Property or the use and
occupancy thereof which (i) are not insured by an ALTA lender’s title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (ii) would
have a material adverse effect on the value, operation or net operating income
of the Underlying Mortgaged Property. 
The Mezzanine Loan Documents and the Underlying Mortgage Loan documents
require the Underlying Mortgaged Property to comply with all applicable laws
and ordinances.


(kk)                            None
of the material improvements which were included for the purposes of
determining the appraised value of any related Underlying Mortgaged Property at
the time of the origination of the Mezzanine Loan or any related Underlying
Mortgage Loan lies outside of the boundaries and building restriction lines of
such property (except Underlying Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material adverse affect
on the value of the Underlying Mortgaged Property or the related Mortgagor’s
use 











and operation of such Underlying Mortgaged Property (unless
affirmatively covered by title insurance) and no improvements on adjoining
properties encroached upon such Underlying Mortgaged Property to any material
and adverse extent (unless affirmatively covered by title insurance).


(ll)                                  As
of the Purchase Date for the related Purchased Asset, there was no pending
action, suit or proceeding, or governmental investigation of which Seller, the
Mezzanine Borrower or the Underlying Property Owner has received notice,
against the Mortgagor or the related Underlying Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect the Mezzanine Loan or the Underlying Mortgage Loan.


(mm)                      The
improvements located on the Underlying Mortgaged Property are either not
located in a federally designated special flood hazard area or, if so located,
the Mortgagor is required to maintain or the Mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full force
and effect in an amount no less than the lesser of (i) the original principal
balance of the Underlying Mortgage Loan, (ii) the value of such improvements on
the related Underlying Mortgaged Property located in such flood hazard area or
(iii) the maximum allowed under the related federal flood insurance program.


(nn)                          Except
for Mortgagors under Underlying Mortgage Loans the Underlying Mortgaged
Property with respect to which includes a Ground Lease, the related Mortgagor
(or its affiliate) has title in the fee simple interest in each related
Underlying Mortgaged Property.


(oo)                          The
related Underlying Mortgaged Property is not encumbered, and none of the
Mezzanine Loan Documents or any Underlying Mortgage Loan documents permits the
related Underlying Mortgaged Property to be encumbered subsequent to the
Purchase Date of the related Purchased Asset without the prior written consent
of the holder thereof, by any lien securing the payment of money junior to or
of equal priority with, or superior to, the lien of the related Mortgage (other
than Title Exceptions, taxes, assessments and contested mechanics and
materialmens liens that become payable after such Purchase Date).


(pp)                          Each
related Underlying Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax lots
and a Person has indemnified the Mortgagee for any loss suffered in connection
therewith or an escrow of funds in an amount sufficient to pay taxes resulting
from a breach thereof has been established) or is subject to an endorsement
under the related title insurance policy.


(qq)                          An
appraisal of the related Underlying Mortgaged Property was conducted in
connection with the origination of the Underlying Mortgage Loan; and such
appraisal satisfied either (A) the requirements of the “Uniform Standards of
Professional Appraisal Practice” as adopted by the Appraisal Standards Board of
the Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case as in
effect on the date such Underlying Mortgage Loan was originated.











(rr)                                The
related Underlying Mortgaged Property is served by public utilities, water and
sewer (or septic facilities) and otherwise appropriate for the use in which the
Underlying Mortgaged Property is currently being utilized.


(ss)                            With
respect to each related Underlying Mortgaged Property consisting of a Ground
Lease, Seller represents and warrants the following with respect to the related
Ground Lease:


I.                                         Such
Ground Lease or a memorandum thereof has been or will be duly recorded no later
than 30 days after the Purchase Date of the related Purchased Asset and such
Ground Lease permits the interest of the lessee thereunder to be encumbered by
the related Mortgage or, if consent of the lessor thereunder is required, it
has been obtained prior to the Purchase Date.


II.                                     Upon
the foreclosure of the Underlying Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor’s interest in such Ground Lease is assignable to
the Mortgagee under the leasehold estate and its assigns without the consent of
the lessor thereunder (or, if any such consent is required, it has been
obtained prior to the Purchase Date).


III.                                 Such
Ground Lease may not be amended, modified, canceled or terminated without the
prior written consent of the Mortgagee and any such action without such consent
is not binding on the Mortgagee, its successors or assigns, except termination
or cancellation if (i) an event of default occurs under the Ground Lease, (ii)
notice thereof is provided to the Mortgagee and (iii) such default is curable
by the Mortgagee as provided in the Ground Lease but remains uncured beyond the
applicable cure period.


IV.                                 Such
Ground Lease is in full force and effect, there is no material default under
such Ground Lease, and there is no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.


V.                                     The
Ground Lease or ancillary agreement between the lessor and the lessee requires
the lessor to give notice of any default by the lessee to the Mortgagee.  The Ground Lease or ancillary agreement
further provides that no notice given is effective against the Mortgagee unless
a copy has been given to the Mortgagee in a manner described in the Ground
Lease or ancillary agreement.


VI.                                 The
Ground Lease (i) is not subject to any liens or encumbrances superior to, or of
equal priority with, the Mortgage, subject, however, to only the Title
Exceptions or (ii) is subject to a subordination, non-disturbance and
attornment agreement to which the Mortgagee on the lessor’s fee interest in the
Underlying Mortgaged Property is subject.


VII.                             A
Mortgagee is permitted a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the lessee under the
Ground Lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.


VIII.                         Such Ground Lease has an
original term (together with  any
extension options, whether or not currently exercised, set forth therein all of
which can be exercised by the 











Mortgagee if the Mortgagee acquires the lessee’s rights under the
Ground Lease) that extends not less than 20 years beyond the stated maturity
date.


IX.                                Under
the terms of such Ground Lease, any estoppel or consent letter received by the
Mortgagee from the lessor, and the related Mortgage, taken together, any
related insurance proceeds or condemnation award (other than in respect of a
total or substantially total loss or taking) will be applied either to the
repair or restoration of all or part of the related Underlying Mortgaged
Property, with the Mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment or defeasance of the outstanding principal balance of the Underlying
Mortgage Loan, together with any accrued interest (except in cases where a
different allocation would not be viewed as commercially unreasonable by any
commercial mortgage lender, taking into account the relative duration of the
Ground Lease and the related Mortgage and the ratio of the market value of the
related Underlying Mortgaged Property to the outstanding principal balance of
such Underlying Mortgage Loan).


X.                                    The
Ground Lease does not impose any restrictions on subletting that would be
viewed as commercially unreasonable by a prudent commercial lender.


XI.                                The
ground lessor under such Ground Lease is required to enter into a new lease
upon termination of the Ground Lease for any reason, including the rejection of
the Ground Lease in bankruptcy.















 


REPRESENTATIONS AND WARRANTIES 

RE: PURCHASED ASSETS CONSISTING

OF MEZZANINE PARTICIPATIONS


(a)           The Mezzanine Participation is a
senior participation interest in a Mezzanine Loan.


(b)           As of the Purchase Date, the
Mezzanine Participation complies in all material respects with, or is exempt
from, all requirements of federal, state or local law relating to the Mezzanine
Participation.


(c)           Immediately prior to the sale,
transfer and assignment to Buyer thereof, Seller had good and marketable title
to, and was the sole owner and holder of, the Mezzanine Participation, and
Seller is transferring the Mezzanine Participation free and clear of any and
all liens, pledges, encumbrances, charges, security interests or any other
ownership interests of any nature encumbering the Mezzanine Participation.  Upon consummation of the purchase
contemplated to occur in respect of the Mezzanine Participation on the Purchase
Date therefor, Seller will have validly and effectively conveyed to Buyer all
legal and beneficial interest in and to the Mezzanine Participation free and
clear of any pledge, lien, encumbrance or security interest.


(d)           No fraudulent acts were committed by
Seller in connection with its acquisition or origination of the Mezzanine
Participation nor were any fraudulent acts committed by any Person in
connection with the origination of the Mezzanine Participation.


(e)           All information contained in the
related Underwriting Package (or as otherwise provided to Buyer) in respect of
the Mezzanine Participation is accurate and complete in all material respects.


(f)            Seller has full right, power and
authority to sell and assign the Mezzanine Participation and the Mezzanine
Participation has not been cancelled, satisfied or rescinded in whole or part
nor has any instrument been executed that would effect a cancellation,
satisfaction or rescission thereof.


(g)           Other than consents and approvals
obtained as of the related Purchase Date, no consent or approval by any Person
is required in connection with Seller’s sale and/or Buyer’s acquisition of the
Mezzanine Participation, for Buyer’s exercise of any rights or remedies in
respect of the Mezzanine Participation or for Buyer’s sale, pledge or other
disposition of the Mezzanine Participation. 
No third party holds any “right of first refusal”, “right of first
negotiation”, “right of first offer”, purchase option, or other similar rights
of any kind, and no other impediment exists to any such transfer or exercise of
rights or remedies.


(h)           No consent, approval, authorization
or order of, or registration or filing with, or notice to, any court or
governmental agency or body having jurisdiction or regulatory authority is
required for any transfer or assignment by the holder of the Mezzanine
Participation.











(i)            Seller has delivered to Buyer or its
designee the original promissory note, certificate or other similar indicia of
ownership of the Mezzanine Participation, however denominated, together with an
original assignment thereof, executed by Seller in blank, or, with respect to a
participation interest, reissued in Buyer’s name (or such other name as
designated by the Buyer).


(j)            No (i) monetary default, breach or
violation exists with respect to any agreement or other document governing or
pertaining to the Mezzanine Participation, (ii) material non-monetary default,
breach or violation exists with respect to the Mezzanine Participation, or
(iii) event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach, violation or
event of acceleration.


(k)           The Mezzanine Participation has not
been and shall not be deemed to be a Security within the meaning of the
Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as
amended.


(l)            Seller has not received written
notice of any outstanding liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind for
which the holder of the Mezzanine Participation is or may become obligated.


(m)          No issuer of the Mezzanine
Participation is a debtor in any state or federal bankruptcy or insolvency
proceeding.


(n)           With respect to the Mezzanine
Participation, except as set forth in the related documents delivered to Buyer,
the terms of the related documents have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner which
materially interferes with the security intended to be provided by such
documents and no such waiver, modification, alteration, satisfaction, impairment,
cancellation, subordination or recission has occurred since the date upon which
the due diligence file related to the Mezzanine Participation was delivered to
Buyer or its designee.


(o)           With respect to the related Mezzanine
Loan, the related Mezzanine Loan documents require the Mezzanine Borrower to
provide the Mezzanine Lender with certain financial information at the times
required under the related Mezzanine Loan documents.


(p)           The Mezzanine Loan is secured by a
pledge of equity ownership interests in the related borrower under the
Underlying Mortgage Loan or a direct or indirect owner of the related borrower.


(q)           As of the Purchase Date, the related
Mezzanine Loan complies in all material respects with, or is exempt from, all
requirements of federal, state or local law relating to the related Mezzanine
Loan.


(r)            All information contained in the
related Underwriting Package (or as otherwise provided to Buyer) in respect of
the related Mezzanine Loan is accurate and complete in all material respects.











(s)           Except as included in the
Underwriting Package, Seller is not a party to any document, instrument or
agreement, and there is no document, that by its terms modifies or affects the
rights and obligations of any holder of the Mezzanine Participation or the
related Mezzanine Loan and Seller has not consented to any material change or
waiver to any term or provision of any such document, instrument or agreement
and no such change or waiver exists.


(t)            The related Mezzanine Loan is
presently outstanding, the proceeds thereof have been fully and properly
disbursed and, except for amounts held in escrow, there is no requirement for
any future advances thereunder.


(u)           The Underlying Property Owner has
been duly organized and is validly existing and in good standing under the laws
of its jurisdiction of organization, with requisite power and authority to own
its assets and to transact the business in which it is now engaged, the sole
purpose of the Underlying Property Owner under its organizational documents is
to own, finance, sell or otherwise manage the Properties and to engage in any
and all activities related or incidental thereto, and the Mortgaged Properties
constitute the sole assets of the Underlying Property Owner.


(v)           The Underlying Property Owner has
good and marketable title to the Underlying Mortgaged Property, no claims under
the title policies insuring the Underlying Property Owner’s title to the
Properties have been made, and the Underlying Property Owner has not received
any written notice regarding any material violation of any easement,
restrictive covenant or similar instrument affecting the Underlying Mortgaged
Property.


(w)          The representations and warranties
made by the borrower (the “Mezzanine Borrower”) in the Mezzanine Loan
Documents were true and correct in all material respects as of the date such
representations and warranties were stated to be true therein, and there has
been no adverse change with respect to the Mezzanine Loan, the Mezzanine
Borrower, the Underlying Mortgaged Property or the Underlying Property Owner
that would render any such representation or warranty not true or correct in
any material respect as of the Purchase Date.


(x)            The Mezzanine Loan Documents provide
for the acceleration of the payment of the unpaid principal balance of the
Mezzanine Loan if (i) the related borrower voluntarily transfers or encumbers
all or any portion of any related Mezzanine Collateral, or (ii) any direct or
indirect interest in the related borrower is voluntarily transferred or assigned,
other than, in each case, as permitted under the terms and conditions of the
related loan documents.


(y)           Pursuant to the terms of the
Mezzanine Loan Documents: (a) no material terms of any related Mortgage may be
waived, canceled, subordinated or modified in any material respect and no
material portion of such Mortgage or the Underlying Mortgaged Property may be
released without the consent of the holder of the Mezzanine Loan; (b) no
material action may be taken by the Underlying Property Owner with respect to
the Underlying Mortgaged Property without the consent of the holder of the
Mezzanine Loan; (c) the holder of the Mezzanine Loan is entitled to approve the
budget of the Underlying Property Owner as it relates to the Underlying
Mortgaged Property; and (d) the holder of the Mezzanine Loan’s consent is
required prior to the Underlying Property Owner incurring any additional
indebtedness.











(z)            There is no (i) monetary default,
breach or violation with respect to such Mezzanine Loan, the Underlying Mortgage
Loan or any other obligation of the owner of the Underlying Mortgaged Property
(the “Underlying Property Owner”), (ii) material non-monetary default,
breach or violation with respect to such Mezzanine Loan, the Underlying
Mortgage Loan or any other obligation of the Underlying Property Owner or (iii)
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a default, breach, violation or event of
acceleration.


(aa)         No default or event of default has
occurred under any agreement pertaining to any lien or other interest that
ranks pari passu with or senior to the
interests of the Mezzanine Participation or the holder of the related Mezzanine
Loan or with respect to any Underlying Mortgage Loan or other indebtedness in
respect of the related Underlying Mortgaged Property and there is no provision
in any agreement related to any such lien, interest or loan which would provide
for any increase in the principal amount of any such lien, other interest or
loan.


(bb)         Seller’s security interest in the
Mezzanine Loan is covered by a UCC-9 insurance policy (the “UCC-9 Policy”)
in the maximum principal amount of the Mezzanine Loan insuring that the related
pledge is a valid first priority lien on the collateral pledged in respect of
such Mezzanine Loan (the “Mezzanine Collateral”), subject only to the
exceptions stated therein (or a pro forma title policy or marked up title
insurance commitment on which the required premium has been paid exists which
evidences that such UCC-9 Policy will be issued), such UCC-9 Policy (or, if it
has yet to be issued, the coverage to be provided thereby) is in full force and
effect, no material claims have been made thereunder and no claims have been
paid thereunder, Seller has not done, by act or omission, anything that would
materially impair the coverage under the UCC-9 Policy and as of the Purchase
Date, the UCC-9 Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of Buyer without the consent of or
notice to the insurer.


(cc)         The Mezzanine Loan, and each party
involved in the origination of the Mezzanine Loan, complied as of the date of
origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury.


(dd)         Seller has not received any written
notice that the Mezzanine Loan may be subject to reduction or disallowance for
any reason, including without limitation, any setoff, right of recoupment,
defense, counterclaim or impairment of any kind.


(ee)         Seller has no obligation to make loans
to, make guarantees on behalf of, or otherwise extend credit to, or make any of
the foregoing for the benefit of, the Mezzanine Borrower or any other person
under or in connection with the Mezzanine Loan.


(ff)           The servicing and collection
practices used by the servicer of the Mezzanine Loan, and the origination
practices of the related originator, have been in all respects legal, proper
and prudent and have met customary industry standards by prudent institutional
commercial mezzanine lenders and mezzanine loan servicers except to the extent
that, in connection with its origination, such standards were modified as
reflected in the documentation delivered to Buyer.











(gg)         If applicable, the ground lessor
consented to and acknowledged that (i) the Mezzanine Loan is permitted /
approved, (ii) any foreclosure of the Mezzanine Loan and related change in
ownership of the ground lessee will not require the consent of the ground
lessor or constitute a default under the ground lease, (iii) copies of
default notices would be sent to Mezzanine Lender and (iv) it would accept cure
from Mezzanine Lender on behalf of the ground lessee.


(hh)         To the extent the Buyer was granted a
security interest with respect to the Mezzanine Loan, such interest (i) was
given for due consideration, (ii) has attached, (iii) is perfected, (iv) is a
first priority Lien, and (v) has been appropriately assigned to the Buyer by
the Underlying Property Owner.


(ii)           Seller has not received written
notice of any outstanding liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind for
which the holder of such Mezzanine Loan is or may become obligated.


(jj)           Seller has not advanced funds, or
knowingly received any advance of funds from a party other than the borrower
relating to such Mezzanine Loan, directly or indirectly, for the payment of any
amount required by such Mezzanine Loan.


(kk)         All real estate taxes and governmental
assessments, or installments thereof, which would be a lien on any related
Underlying Mortgaged Property and that prior to the Purchase Date for the
related Purchased Asset have become delinquent in respect of such Underlying
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established.  For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments thereof
shall not be considered delinquent until the earlier of (a) the date on
which interest and/or penalties would first be payable thereon and (b) the
date on which enforcement action is entitled to be taken by the related taxing
authority.


(ll)           As of the Purchase Date for the
related Purchased Asset, each related Underlying Mortgaged Property was free
and clear of any material damage (other than deferred maintenance for which
escrows were established at origination) that would affect materially and
adversely the value of such Underlying Mortgaged Property as security for the
related Underlying Mortgage Loan and there was no proceeding pending or, based
solely upon the delivery of written notice thereof from the appropriate
condemning authority, threatened for the total or partial condemnation of such
Underlying Mortgaged Property.


(mm)       As of the date of origination of the
Mezzanine Loan, all insurance coverage required under the Mezzanine Loan
Documents and/or any Mortgage Loan related to the Underlying Mortgaged
Property, which insurance covered such risks as were customarily acceptable to
prudent commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Underlying Mortgaged Property in
the jurisdiction in which such Underlying Mortgaged Property is located, and
with respect to a fire and extended perils insurance policy, is in an amount
(subject to a customary deductible) at least equal to the lesser of (i) the
replacement cost of improvements located on such Underlying Mortgaged











Property, or (ii)
the outstanding principal balance of the Underlying Mortgage Loan, and in any
event, the amount necessary to prevent operation of any co-insurance
provisions; and, except if such Underlying Mortgaged Property is operated as a
mobile home park, is also covered by business interruption or rental loss
insurance, in an amount at least equal to 12 months of operations of the
related Underlying Mortgaged Property, all of which was in full force and
effect with respect to each related Underlying Mortgaged Property; and, as of
the Purchase Date for the related Purchased Asset, all insurance coverage
required under the Mezzanine Loan Documents and/or any Underlying Mortgage Loan
related to the Underlying Mortgaged Property, which insurance covers such risks
and is in such amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of property
comparable to the related Underlying Mortgaged Property in the jurisdiction in
which such Underlying Mortgaged Property is located, is in full force and
effect with respect to each related Underlying Mortgaged Property; all premiums
due and payable through the Purchase Date for the related Purchased Asset have
been paid; and no notice of termination or cancellation with respect to any
such insurance policy has been received by Seller; and except for certain
amounts not greater than amounts which would be considered prudent by an
institutional commercial and/or multifamily mortgage lender with respect to a
similar mortgage loan and which are set forth in the Mezzanine Loan Documents
and/or any Underlying Mortgage Loan related to the Underlying Mortgaged
Property, any insurance proceeds in respect of a casualty loss, will be applied
either (i) to the repair or restoration of all or part of the related
Underlying Mortgaged Property or (ii) the reduction of the outstanding
principal balance of the Underlying Mortgage Loan, subject in either case to
requirements with respect to leases at the related Underlying Mortgaged
Property and to other exceptions customarily provided for by prudent
institutional lenders for similar loans. 
The Underlying Mortgaged Property is also covered by comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Underlying
Mortgaged Property, in an amount customarily required by prudent institutional
lenders.  An architectural or engineering
consultant has performed an analysis of the Underlying Mortgaged Properties
located in seismic zone 3 or 4 in order to evaluate the structural and seismic
condition of such property, for the sole purpose of assessing the probable
maximum loss (“PML”) for the Underlying Mortgaged Property in the event
of an earthquake.  In such instance, the
PML was based on a 475 year lookback with a 10% probability of exceedance in a
50 year period.  If the resulting report
concluded that the PML would exceed 20% of the amount of the replacement costs
of the improvements, earthquake insurance on such Underlying Mortgaged Property
was obtained by an insurer rated at least A-:V by A.M. Best Company or “BBB-”
(or the equivalent) from S&P and Fitch or “Baa3” (or the equivalent) from
Moody’s.  If the Underlying Mortgaged Property
is located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina such Underlying
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such Underlying
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Underlying
Mortgaged Property.


(nn)         The insurance policies contain a
standard Mortgagee clause naming the Mortgagee, its successors and assigns as
loss payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy and provide that they are not
terminable without 30 days prior written notice to the Mortgagee (or, with
respect to non-











payment, 10 days
prior written notice to the Mortgagee) or such lesser period as prescribed by
applicable law.  Each Mortgage requires
that the Mortgagor maintain insurance as described above or permits the
Mortgagee to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor’s expense if Mortgagor fails to do so.


(oo)         There is no material and adverse
environmental condition or circumstance affecting the Underlying Mortgaged
Property; there is no material violation of any applicable Environmental Law
with respect to the Underlying Mortgaged Property; neither Seller nor the
Underlying Property Owner has taken any actions which would cause the
Underlying Mortgaged Property not to be in compliance with all applicable
Environmental Laws; the Underlying Mortgage Loan documents require the borrower
to comply with all Environmental Laws; and each Mortgagor has agreed to
indemnify the Mortgagee for any losses resulting from any material, adverse
environmental condition or failure of the Mortgagor to abide by such
Environmental Laws or has provided environmental insurance.


(pp)         No borrower under the Mezzanine Loan
nor any Mortgagor under any Underlying Mortgage Loan is a debtor in any state
or federal bankruptcy or insolvency proceeding.


(qq)         Each related Underlying Mortgaged
Property was inspected by or on behalf of the related originator or an
affiliate during the 12 month period prior to the related origination date.


(rr)           There are no material violations of
any applicable zoning ordinances, building codes and land laws applicable to
the Underlying Mortgaged Property or the use and occupancy thereof which (i)
are not insured by an ALTA lender’s title insurance policy (or a binding
commitment therefor), or its equivalent as adopted in the applicable
jurisdiction, or a law and ordinance insurance policy or (ii) would have a
material adverse effect on the value, operation or net operating income of the
Underlying Mortgaged Property.  The
Mezzanine Loan Documents and the Underlying Mortgage Loan documents require the
Underlying Mortgaged Property to comply with all applicable laws and
ordinances.


(ss)         None of the material improvements which
were included for the purposes of determining the appraised value of any
related Underlying Mortgaged Property at the time of the origination of the
Mezzanine Loan or any related Underlying Mortgage Loan lies outside of the
boundaries and building restriction lines of such property (except Underlying
Mortgaged Properties which are legal non-conforming uses), to an extent which
would have a material adverse affect on the value of the Underlying Mortgaged
Property or the related Mortgagor’s use and operation of such Underlying
Mortgaged Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Underlying Mortgaged
Property to any material and adverse extent (unless affirmatively covered by
title insurance).


(tt)           As of the Purchase Date for the
related Purchased Asset, there was no pending action, suit or proceeding, or
governmental investigation of which Seller, the Mezzanine Borrower or the
Underlying Property Owner has received notice, against the Mortgagor or the
related Underlying Mortgaged Property the adverse outcome of which could
reasonably be











expected to
materially and adversely affect the Mezzanine Loan or the Underlying Mortgage
Loan.


(uu)         The improvements located on the
Underlying Mortgaged Property are either not located in a federally designated
special flood hazard area or, if so located, the Mortgagor is required to
maintain or the Mortgagee maintains, flood insurance with respect to such
improvements and such policy is in full force and effect in an amount no less
than the lesser of (i) the original principal balance of the Underlying
Mortgage Loan, (ii) the value of such improvements on the related Underlying
Mortgaged Property located in such flood hazard area or (iii) the maximum
allowed under the related federal flood insurance program.


(vv)         With respect to each related Underlying
Mortgage Loan, except for Mortgagors under Underlying Mortgage Loans, the
Underlying Mortgaged Property with respect to which includes a Ground Lease,
the related lessor (or its affiliate) has title in the fee simple interest in
each related Underlying Mortgaged Property.


(ww)       The related Underlying Mortgaged Property
is not encumbered, and none of the Mezzanine Loan Documents or any Underlying
Mortgage Loan documents permits the related Underlying Mortgaged Property to be
encumbered subsequent to the Purchase Date of the related Purchased Asset
without the prior written consent of the holder thereof, by any lien securing
the payment of money junior to or of equal priority with, or superior to, the
lien of the related Mortgage (other than Title Exceptions, taxes, assessments
and contested mechanics and materialmens liens that become payable after such
Purchase Date).


(xx)          Each related Underlying Mortgaged
Property constitutes one or more complete separate tax lots (or the related
Mortgagor has covenanted to obtain separate tax lots and a Person has
indemnified the Mortgagee for any loss suffered in connection therewith or an
escrow of funds in an amount sufficient to pay taxes resulting from a breach
thereof has been established) or is subject to an endorsement under the related
title insurance policy.


(yy)         An appraisal of the related Underlying
Mortgaged Property was conducted in connection with the origination of the
Underlying Mortgage Loan; and such appraisal satisfied either (A) the
requirements of the “Uniform Standards of Professional Appraisal Practice” as
adopted by the Appraisal Standards Board of the Appraisal Foundation, or (B)
the guidelines in Title XI of the Financial Institutions Reform, Recovery and
Enforcement Act or 1989, in either case as in effect on the date such
Underlying Mortgage Loan was originated.


(zz)          The related Underlying Mortgaged
Property is served by public utilities, water and sewer (or septic facilities)
and otherwise appropriate for the use in which the Underlying Mortgaged
Property is currently being utilized.


(aaa)       With respect to each related Underlying
Mortgaged Property consisting of a Ground Lease, Seller represents and warrants
the following with respect to the related Ground Lease:


I.        Such Ground Lease or a
memorandum thereof has been or will be duly recorded no later than 30 days
after the Purchase Date of the related Purchased Asset and such Ground











Lease permits the
interest of the lessee thereunder to be encumbered by the related Mortgage or,
if consent of the lessor thereunder is required, it has been obtained prior to
the Purchase Date.


II.       Upon the foreclosure of
the Underlying Mortgage Loan (or acceptance of a deed in lieu thereof), the
Mortgagor’s interest in such Ground Lease is assignable to the Mortgagee under
the leasehold estate and its assigns without the consent of the lessor
thereunder (or, if any such consent is required, it has been obtained prior to
the Purchase Date).


III.     Such Ground Lease may not
be amended, modified, canceled or terminated without the prior written consent
of the Mortgagee and any such action without such consent is not binding on the
Mortgagee, its successors or assigns, except termination or cancellation if (i)
an event of default occurs under the Ground Lease, (ii) notice thereof is
provided to the Mortgagee and (iii) such default is curable by the Mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable cure period.


IV.     Such Ground Lease is in
full force and effect, there is no material default under such Ground Lease,
and there is no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material default
under such Ground Lease.


V.       The Ground Lease or
ancillary agreement between the lessor and the lessee requires the lessor to
give notice of any default by the lessee to the Mortgagee.  The Ground Lease or ancillary agreement
further provides that no notice given is effective against the Mortgagee unless
a copy has been given to the Mortgagee in a manner described in the Ground
Lease or ancillary agreement.


VI.     The Ground Lease (i) is
not subject to any liens or encumbrances superior to, or of equal priority
with, the Mortgage, subject, however, to only the Title Exceptions or (ii) is
subject to a subordination, non-disturbance and attornment agreement to which
the Mortgagee on the lessor’s fee interest in the Underlying Mortgaged Property
is subject.


VII.    A Mortgagee is permitted a
reasonable opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under the Ground Lease) to cure any
curable default under such Ground Lease before the lessor thereunder may
terminate such Ground Lease.


VIII.   Such Ground Lease has an
original term (together with  any
extension options, whether or not currently exercised, set forth therein all of
which can be exercised by the Mortgagee if the Mortgagee acquires the lessee’s
rights under the Ground Lease) that extends not less than 20 years beyond the
stated maturity date.


IX.     Under the terms of such
Ground Lease, any estoppel or consent letter received by the Mortgagee from the
lessor, and the related Mortgage, taken together, any related insurance
proceeds or condemnation award (other than in respect of a total or
substantially total loss or taking) will be applied either to the repair or
restoration of all or part of the related Underlying Mortgaged Property, with
the Mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses, or to the payment
or defeasance of the outstanding principal balance of the Underlying Mortgage
Loan, together with any accrued











interest (except
in cases where a different allocation would not be viewed as commercially
unreasonable by any commercial mortgage lender, taking into account the
relative duration of the Ground Lease and the related Mortgage and the ratio of
the market value of the related Underlying Mortgaged Property to the
outstanding principal balance of such Underlying Mortgage Loan).


X.      The Ground Lease does not
impose any restrictions on subletting that would be viewed as commercially
unreasonable by a prudent commercial lender


XI.     The
ground lessor under such Ground Lease is required to enter into a new lease
upon termination of the Ground Lease for any reason, including the rejection of
the Ground Lease in bankruptcy.















EXHIBIT
VII


ASSET INFORMATION


	
  Loan ID #:

  
	
  Borrower Name:

  
	
  Borrower Address:

  
	
  Borrower City:

  
	
  Borrower State:

  
	
  Borrower Zip Code:

  
	
  Recourse?

  
	
  Guaranteed?

  
	
  Related Borrower Name(s):

  
	
  Original Principal Balance:

  
	
  Note Date:

  
	
  Loan Date:

  
	
  Loan Type (e.g. fixed/arm):

  
	
  Current Principal Balance:

  
	
  Current Interest Rate (per annum):

  
	
  Paid to date:

  
	
  Annual P&I:

  
	
  Next Payment due date:

  
	
  Index (complete whether fixed or arm):

  
	
  Gross Spread/Margin (complete whether fixed or arm):

  
	
  Life Cap:

  
	
  Life Floor:

  
	
  Periodic Cap:

  
	
  Periodic Floor:

  
	
  Rounding Factor:

  
	
  Lookback (in days):

  
	
  Interest Calculation Method (e.g., Actual/360):

  
	
  Interest rate adjustment frequency:

  
	
  P&I payment frequency:

  
	
  First P&I payment due:

  
	
  First interest rate adjustment date:

  
	
  First payment adjustment date:

  
	
  Next interest rate adjustment date:

  
	
  Next payment adjustment date:

  
	
  Conversion Date:

  
	
  Converted Interest Rate Index:

  
	
  Converted Interest Rate Spread:

  
	
  Maturity date:

  
	
  Loan term:

  
	
  Amortization term:

  
	
  Hyper-Amortization Flag:

  
	
  Hyper-Amortization Term:

  
	
  Hyper-Amortization Rate Increase:

  
	
  Balloon Amount:

  



 











 


	
  Balloon LTV:

  
	
  Prepayment
  Penalty Flag:

  
	
  Prepayment
  Penalty Text:

  
	
  Lockout Period:

  
	
  Lien Position:

  
	
  Fee/Leasehold:

  
	
  Ground Lease
  Expiration Date:

  
	
  CTL (Yes/No):

  
	
  CTL Rating
  (Moody’s):

  
	
  CTL Rating
  (Duff):

  
	
  CTL Rating
  (S&P):

  
	
  CTL Rating
  (Fitch):

  
	
  Lease Guarantor:

  
	
  CTL Lease Type
  (NNN, NN, Bondable):

  
	
  Property Name:

  
	
  Property
  Address:

  
	
  Property City:

  
	
  Property Zip
  Code:

  
	
  Property Type
  (General):

  
	
  Property Type
  (Specific):

  
	
  Cross-collateralized
  (Yes/No)*

  
	
  Property Size:

  
	
  Year built:

  
	
  Year renovated:

  
	
  Actual Average
  Occupancy:

  
	
  Occupancy Rent
  Roll Date:

  
	
  Underwritten
  Average Occupancy:

  
	
  Largest Tenant:

  
	
  Largest Tenant
  SF:

  
	
  Largest Tenant
  Lease Expiration:

  
	
  2nd Largest
  Tenant:

  
	
  2nd Largest
  Tenant SF:

  
	
  2nd Largest
  Tenant Lease Expiration:

  
	
  3rd Largest
  Tenant:

  
	
  3rd Largest
  Tenant SF:

  
	
  3rd Largest
  Tenant Lease Expiration:

  
	
  Underwritten
  Average Rental Rate/ADR:

  
	
  Underwritten
  Vacancy/Credit Loss:

  
	
  Underwritten
  Other Income:

  
	
  Underwritten
  Total Revenues:

  
	
  Underwritten
  Replacement Reserves:

  



 






*      If yes, give property information on each property covered and
in aggregate as appropriate. Loan ID’s should be denoted with a suffix letter
to signify loans/collateral.











 


	
  Underwritten
  Management Fees:

  
	
  Underwritten Franchise Fees:

  
	
  Underwritten Total Expenses:

  
	
  Underwritten Leasing Commissions:

  
	
  Underwritten Tenant Improvement Costs:

  
	
  Underwritten NOI:

  
	
  Underwritten NCF:

  
	
  Underwritten Debt Service Constant:

  
	
  Underwritten DSCR at NOI:

  
	
  Underwritten DSCR at NCF:

  
	
  Underwritten NOI Period End Date:

  
	
  Hotel Franchise:

  
	
  Hotel Franchise Expiration Date:

  
	
  Appraiser Name:

  
	
  Appraised Value:

  
	
  Appraisal Date:

  
	
  Appraisal Cap Rate:

  
	
  Appraisal Discount Rate:

  
	
  Underwritten LTV:

  
	
  Environmental Report Preparer:

  
	
  Environmental Report Date:

  
	
  Environmental Report Issues:

  
	
  Architectural and Engineering Report Preparer:

  
	
  Architectural and Engineering Report Date:

  
	
  Deferred Maintenance Amount:

  
	
  Ongoing Replacement Reserve Requirement per A&E
  Report:

  
	
  Immediate Repairs Escrow % (e.g. [      ]%):

  
	
  Replacement Reserve Annual Deposit:

  
	
  Replacement Reserve Balance:

  
	
  Tenant Improvement/Leasing Commission Annual
  Deposits:

  
	
  Tenant Improvement/Leasing Commission Balance:

  
	
  Taxes paid through date:

  
	
  Monthly Tax Escrow:

  
	
  Tax Escrow Balance:

  
	
  Insurance paid through date:

  
	
  Monthly Insurance Escrow:

  
	
  Insurance Escrow Balance:

  
	
  Reserve/Escrow Balance as of Date:

  
	
  Probable Maximum Loss %:

  
	
  Covered by Earthquake Insurance (Yes/No):

  
	
  Number of times 30 days late in last 12 months:

  
	
  Number of times 60 days late in last 12 months:

  
	
  Number of times 90 days late in last 12 months:

  
	
  Servicing Fee:

  
	
  Notes:

  



 











EXHIBIT VIII


ADVANCE
PROCEDURES


(a)           Submission of Preliminary Due
Diligence Package.


(A)          Seller may, from time to time, submit
to Buyer a Preliminary Due Diligence Package for Buyer’s review and approval in
order to enter into a Transaction with respect to any Eligible Asset that
Seller proposes to be included as a Purchased Asset under the Agreement, including
any Requested Exception Report; provided that Buyer shall not be under
any obligation to enter into any Transaction.


(B)           Upon Buyer’s receipt of a complete
Preliminary Due Diligence Package, Buyer, within five (5) Business Days, shall
have the right to request, in Buyer’s sole and absolute discretion, additional
diligence materials and deliveries that Buyer shall specify on a Supplemental
Due Diligence List.  Upon Buyer’s receipt
of all of the Diligence Materials or Buyer’s waiver thereof, Buyer shall
promptly, but in any event within five(5) Business Days and only following
receipt of internal credit approval, shall either (i) notify Seller of the
Purchase Price and the Market Value for the Eligible Asset or (ii) deny,
in Buyer’s sole and absolute discretion, Seller’s request for a
Transaction.  Buyer’s failure to respond
to Seller within five (5) Business Days following receipt of all Diligence
Materials or Buyer’s written waiver thereof shall be deemed to be a denial of
Seller’s request for an Advance, unless Buyer and Seller have agreed otherwise
in writing.  Nothing in this Exhibit
VIII or elsewhere in this Agreement shall, or be deemed to, prohibit Buyer
from determining in its sole discretion exercised in good faith the adequacy,
correctness and appropriateness of, or from disapproving, any and all financial
and other underwriting data required to be supplied by Seller under this
Agreement.


(b)           Final Approval of an Eligible
Asset.  Upon Buyer’s notification to
Seller of the Purchase Price and the Market Value for any Eligible Loan, Seller
shall, if Seller desires to enter into a Transaction with respect to such New
Asset, satisfy the conditions set forth below (in addition to satisfying the
conditions precedent with respect to each Transaction, as set forth in Article
3(b) of this Agreement) as a condition precedent to Buyer’s approval of
such Eligible Asset as a Purchased Item, all in a manner, and pursuant to
documentation, satisfactory in all respects to Buyer (and its counsel) in its
sole, but good faith, discretion:


(A)          Delivery of Purchased Asset
Documents.  Seller shall deliver to
Buyer: (i) with respect to a New Asset that is a Pre-Existing Asset, each
of the Purchased Asset Documents, except Purchased Asset Documents that Seller
expressly and specifically disclosed in Seller’s Preliminary Due Diligence
Package were not in Seller’s possession; and 











(ii) with respect to New
Asset that is an Originated Asset, each of the Purchased Asset Documents.


(B)           Environmental and Engineering.  Buyer shall have received a “Phase 1” (and,
if requested by Buyer, “Phase 2”)
environmental report, an asbestos survey, if applicable, and an engineering
report, each in form reasonably satisfactory to Buyer, by an engineer or
environmental consultant reasonably approved by Buyer.


(C)           Appraisal.  Buyer shall have received either an appraisal
approved by Buyer (or a Draft Appraisal), each by an MAI appraiser.  If Buyer receives only a Draft Appraisal
prior to entering into a Transaction, Seller shall deliver an appraisal
approved by Buyer by an MAI appraiser on or before thirty (30) days after the
Purchase Date.


(D)          Insurance.  Buyer shall have received certificates or
other evidence of insurance demonstrating insurance coverage in respect of the
underlying real estate directly or indirectly securing or supporting such
Purchased Asset of types, in amounts, with insurers and otherwise in compliance
with the terms, provisions and conditions set forth in the Purchased Asset
Documents.  Such certificates or other
evidence shall indicate that Seller (or, as to Subordinate Eligible Assets, the
lead lender on the whole loan in which Seller is a participant or holder of a
note or has an equity interest in the Mortgagor, as applicable), will be named
as an additional insured as its interest may appear and shall contain a loss
payee endorsement in favor of such additional insured with respect to the
policies required to be maintained under the Purchased Asset Documents.


(E)           Survey.  Buyer shall have received all surveys of the
underlying real estate directly or indirectly securing or supporting such
Purchased Asset that are in Seller’s possession.


(F)           Lien Search Reports.  Buyer or Buyer’s counsel shall have received,
as reasonably requested by Buyer, satisfactory reports of UCC, tax lien,
judgment and litigation searches and title updates conducted by search firms
and/or title companies reasonably acceptable to Buyer with respect to the
Eligible Loan, underlying real estate directly or indirectly securing or
supporting such Eligible Loan, Seller and Mortgagor, such searches to be
conducted in each location Buyer shall reasonably designate.


(G)           Title Insurance Policy.


(1)                                  With
respect to a Senior Mortgage Loan, Seller shall have delivered to Buyer (1) an
unconditional commitment to issue a Title Policy in favor of Buyer and Buyer’s
successors and/or assigns with respect to Buyer’s interest in the related real
property and insuring the assignment of the Eligible Asset to Buyer, with an 











amount of insurance that shall be not less than the
maximum principal amount of the Eligible Asset (taking into account the
proposed Advance) or (2) an endorsement or confirmatory letter from the title
insurance company that issued the existing title insurance policy, in favor of
Buyer and Buyer’s successors and/or assigns, that amends the existing title
insurance policy by stating that the amount of the insurance is not less than
the maximum principal amount of the Eligible Asset (taking into account the
proposed Advance).


(2)                                  Seller
shall have delivered to Buyer a copy of an unconditional commitment to issue a
Title Policy or an existing title insurance policy with respect to any
Subordinate Eligible Asset that is evidenced by a Mortgage Note, in an amount
not less than the amount of such Mortgage Note and all superior notes or (2)
with respect to any Subordinate Eligible Asset that is not evidenced by a
Mortgage Note, in an amount not less than the amount of the related
indebtedness and all superior notes or participations.


(3)                                  With
respect to any CMBS or CRE CDO, Seller shall have delivered to Buyer such
evidence as Buyer on a case-by-case basis, in its good faith
discretion, shall require of the ownership of the real property underlying such
item of Collateral including, without limitation, a copy of a Title Policy
dated a date, and issued by a title insurer, in each case acceptable to Buyer
in its reasonable discretion, showing that title is vested in the related
Mortgagor or in an entity in whom such Mortgagor holds a beneficial interest.


(H)          Assignment Documents.  Seller shall have executed and delivered to
Buyer, in form and substance reasonably satisfactory to Buyer and its counsel,
all applicable assignment documents assigning to Buyer the proposed Eligible
Asset (and in any Hedging Transactions held by Seller with respect thereto)
that shall be subject to no liens except as expressly permitted by Buyer.  Each of the assignment documents shall
contain such representations and warranties in writing concerning the proposed
Eligible Asset and such other terms as shall be satisfactory to Buyer in its
sole discretion.


(I)            Opinions of Counsel.  Buyer shall have received an opinion to
Seller and its successors and assigns from counsel to the underlying obligor on
the underlying loan transaction, as applicable, as to enforceability of the
loan documents governing such transaction and such other matters as Buyer shall
require (including, without limitation, opinions as to due formation,
authority, choice of law and perfection of security interests).


(J)            Additional Real Estate Matters.  To the extent obtained by Seller from the
Mortgagor or the underlying obligor relating to any Eligible Asset at the
origination of the Eligible Asset, Seller shall have delivered to Buyer such
other real estate related certificates and documentation as may have been
requested by Buyer, such as (i) 











certificates of occupancy
and letters certifying that the property is in compliance with all applicable
zoning laws, each issued by the appropriate Governmental Authority and (ii)
abstracts of all leases in effect at the real property relating to such
Eligible Asset.


(K)          Subordinate Eligible Assets.  In the case of Subordinate Eligible Assets,
in addition to the delivery of the items in clauses (g), (h) and (i), Buyer
shall have received all documentation specified in clauses (a) through (f) and
(j) as if the underlying mortgage loan were the direct New Asset but solely to
the extent Seller possesses such documentation or has access to such
documentation because it was provided to the related lead lender and made
available to Seller and, in addition, all documents evidencing the Subordinate
Eligible Asset, including, but not limited to, an original Mortgage Note,
participation certificate, if applicable, and the related participation and/or
intercreditor agreement.


(L)           Other Documents.  Buyer shall have received such other
documents as Buyer or its counsel shall reasonably deem necessary.


Seller shall deliver the
items set forth in clauses (a) through (l) above to Buyer and its counsel from time
to time promptly upon receipt of same by Seller or its counsel.


(c)           Eligible Asset Approval or
Disapproval.  Within five (5)
Business Days following the date upon which Seller has tendered performance of
the conditions enumerated in clauses (a) through (l) of subsection III above,
or has delivered such items or documents fully executed, if applicable, in
final form, and provided that Buyer and/or Buyer’s counsel, in the sole
discretion of Buyer exercised in good faith, has had sufficient time to perform
a diligence review of such materials, 
Buyer shall either (i) if the documents with respect to the proposed
Eligible Asset are not satisfactory in form and substance to Buyer, notify
Seller in writing that Buyer has not approved the proposed Eligible Asset as a
Purchased Asset or (ii) notify Seller in writing that Buyer has approved the
proposed Eligible Asset as a Purchased Asset. 
Buyer’s failure to respond to Seller within such five (5) Business Day
period shall be deemed to be a denial of Seller’s request that Buyer approve
the proposed Eligible Loan, unless Buyer and Seller have agreed otherwise in
writing.











EXHIBIT IX


Excluded Transferees


	
  Five Mile Capital

  
	
  Newcastle

  
	
  RAIT investment trust

  
	
  CBF (CBRE REIT)

  
	
  Capital Source

  
	
  KFN (KKR REIT)

  
	
  iStar Financial;

  
	
  Anthracite Carbon Fund, together with any successor
  funds, to the extent such funds are in the same business as their predecessor
  fund;

  
	
  DB Realty Mezzanine Investment Fund I LLC and DB
  Realty Mezzanine Investment Fund II LLC, together with any successor funds,
  to the extent such funds are in the same business as their predecessor fund;

  
	
  Brascan;

  
	
  Guggenheim Structured Real Estate Operating Company,
  LLC;

  
	
  SL Green/Gramercy Capital;

  
	
  Arbor Commercial Mortgage LLC;

  
	
  CW Capital;

  
	
  Fortress/Draw Bridge;

  
	
  NorthStar Realty Finance Corporation;

  
	
  JE Roberts; and

  
	
  Whitehall (and each such entity’s Affiliates).

  



 











EXHIBIT X


FORM OF BAILEE
LETTER


	
  

  	
   

  	
                             
       

  	
  , 20

  	
      

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


Re:                               Bailee
Agreement (the “Bailee Agreement”)
in connection with the pledge by Capital Trust, Inc. (the “Seller”) to JPMorgan
Chase Bank, N.A. (the “Buyer”)


Ladies and Gentlemen:


In consideration
of the mutual promises set forth herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Seller, Buyer and
[    ] (the “Bailee”)
hereby agree as follows:


(a)           Seller shall deliver to the Bailee in
connection with any Purchased Assets delivered to the Bailee hereunder an
Identification Certificate in the form of Attachment 1 attached hereto to which
shall be attached a Purchased Asset Schedule identifying which Purchased Assets
are being delivered to the Bailee hereunder. 
Such Purchased Asset Schedule shall contain the following fields of
information:  (a) the loan identifying
number; (b) the Purchased Asset obligor’s name; (c) the street address, city,
state and zip code for the applicable real property; (d) the original balance;
and (e) the current principal balance if different from the original balance.


(b)           On or prior to the date indicated on
the Custodial Identification Certificate delivered by Seller (the “Funding Date”), Seller
shall have delivered to the Bailee, as bailee for hire, the original documents
set forth on Schedule A attached hereto (collectively, the “Purchased Asset File”)
for each of the Purchased Assets (each a “Purchased Asset” and collectively, the “Purchased Assets”)
listed in Exhibit A to Attachment 1 attached hereto (the “Purchased Asset Schedule”).


(c)           The Bailee shall issue and deliver to
Buyer and LaSalle Bank National Association (the “Custodian”) on or
prior to the Funding Date by facsimile (a) in the name of Buyer, an initial
trust receipt and certification in the form of Attachment 2 attached hereto
(the “Bailee’s Trust Receipt and
Certification”) which Bailee’s Trust Receipt and
Certification shall state that the Bailee has received the documents comprising
the Purchased Asset File as set forth in the Custodial Identification
Certificate (as defined in that certain Custodial Agreement dated as of
November 1, 2006, among Seller, Buyer and Custodian (as defined in Article 5
below), in addition to such other documents required to be delivered to Buyer
and/or Custodian pursuant to the Master 











Repurchase Agreement dated as of November 1, 2006,
between Seller and Buyer (the “Repurchase
Agreement”).


(d)           On the applicable Funding Date, in
the event that Buyer fails to purchase from Seller the Purchased Assets
identified in the related Custodial Identification Certificate, Buyer shall
deliver by facsimile to the Bailee at [   
] to the attention of [    ], an
authorization (the “Facsimile
Authorization”) to release the Purchased Asset Files with
respect to the Purchased Assets identified therein to Seller.  Upon receipt of such Facsimile Authorization,
the Bailee shall release the Purchased Asset Files to Seller in accordance with
Seller’s instructions.


(e)           Following the Funding Date, the
Bailee shall forward the Purchased Asset Files to the Custodian at 2571 Busse
Road, Dock 49, Elk Grove Village, Illinois 60007 by insured overnight courier
for receipt by the Custodian no later than 1:00 p.m. on the third Business Day
following the applicable Funding Date (the “Delivery Date”).


(f)            From and after the applicable
Funding Date until the time of receipt of the Facsimile Authorization or the
applicable Delivery Date, as applicable, the Bailee (a) shall maintain
continuous custody and control of the related Purchased Asset Files as bailee
for Buyer and (b) is holding the related Purchased Assets as sole and exclusive
bailee for Buyer unless and until otherwise instructed in writing by Buyer.


(g)           Seller agrees to indemnify and hold
the Bailee and its partners, directors, officers, agents and employees harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever, including reasonable attorney’s fees, that may be imposed
on, incurred by, or asserted against it or them in any way relating to or
arising out of this Bailee Agreement or any action taken or not taken by it or
them hereunder unless such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (other
than special, indirect, punitive or consequential damages, which shall in no
event be paid by the Bailee) were imposed on, incurred by or asserted against
the Bailee because of the breach by the Bailee of its obligations hereunder,
which breach was caused by negligence, lack of good faith or willful misconduct
on the part of the Bailee or any of its partners, directors, officers, agents
or employees.  The foregoing
indemnification shall survive any resignation or removal of the Bailee or the
termination or assignment of this Bailee Agreement.


(h)           In the event that the Bailee fails to
produce a Mortgage Note, assignment of collateral or any other document related
to a Purchased Asset that was in its possession within ten (10) business days
after required or requested by Seller or Buyer (a “Delivery Failure”), the Bailee shall indemnify
Seller or Buyer in accordance with the succeeding paragraph of this Article
8.











(i)            Seller agrees to indemnify and hold
Buyer and its respective affiliates and designees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever,
including reasonable attorney’s fees, that may be imposed on, incurred by, or
asserted against it or them in any way relating to or arising out of a
Custodial Delivery Failure or the Bailee’s negligence, lack of good faith or
willful misconduct.  The foregoing
indemnification shall survive any termination or assignment of this Bailee
Agreement.


(j)            Seller hereby represents, warrants
and covenants that the Bailee is not an affiliate of or otherwise controlled by
Seller.  Notwithstanding the foregoing,
the parties hereby acknowledge that the Bailee hereunder may act as Counsel to
Seller in connection with a proposed transaction and [    ], if acting as Bailee, has represented
Seller in connection with negotiation, execution and delivery of the Repurchase
Agreement.


(k)           In connection with a pledge of the
Purchased Assets as collateral for an obligation of Buyer, Buyer may pledge its
interest in the corresponding Purchased Asset Files held by the Bailee for the
benefit of Buyer from time to time by delivering written notice to the Bailee
that Buyer has pledged its interest in the identified Purchased Assets and
Purchased Asset Files, together with the identity of the party to whom the
Purchased Assets have been pledged (such party, the “Pledgee”). 
Upon receipt of such notice from Buyer, the Bailee shall mark its
records to reflect the pledge of the Purchased Assets by Buyer to the
Pledgee.  The Bailee’s records shall
reflect the pledge of the Purchased Assets by Buyer to the Pledgee until such
time as the Bailee receives written instructions from Buyer that the Purchased
Assets are no longer pledged by Buyer to the Pledgee, at which time the Bailee
shall change its records to reflect the release of the pledge of the Purchased
Assets and that the Bailee is holding the Purchased Assets as custodian for,
and for the benefit of, Buyer.


(l)            The agreement set forth in this
Bailee Agreement may not be modified, amended or altered, except by written
instrument, executed by all of the parties hereto.


(m)          This Bailee Agreement may not be
assigned by Seller or the Bailee without the prior written consent of Buyer.


(n)           For the purpose of facilitating the
execution of this Bailee Agreement as herein provided and for other purposes,
this Bailee Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute and be one and the same instrument.


(o)           This Bailee Agreement shall be
construed in accordance with the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.











(p)           Capitalized terms used herein and
defined herein shall have the meanings ascribed to them in the Repurchase
Agreement.















 


Very truly yours,


 


CAPITAL TRUST, INC.


 


 


	
  

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
  ACCEPTED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [BAILEE]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ACCEPTED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  JPMORGAN CHASE BANK, N.A.,

  	
   

  	
   

  
	
  Buyer

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					












Schedule A


[List of Purchased Asset Documents]











Attachment 1


IDENTIFICATION CERTIFICATE


On this      
day of                 ,
200  , CAPITAL TRUST, INC. (the “Seller”), under that certain Bailee Agreement of
even date herewith (the “Bailee
Agreement”), among Seller, [    ] (the “Bailee”), and JPMORGAN CHASE BANK, N.A., as
Buyer, does hereby instruct the Bailee to hold, in its capacity as Bailee, the
Purchased Asset Files with respect to the Purchased Assets listed on Exhibit
A hereto, which Purchased Assets shall be subject to the terms of the
Bailee Agreement as of the date hereof.


Capitalized terms used
herein and not otherwise defined shall have the meanings set forth in the
Bailee Agreement.


IN WITNESS WHEREOF,
Seller has caused this Identification Certificate to be executed and delivered
by its duly authorized officer as of the day and year first above written.


CAPITAL TRUST, INC.


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  












Exhibit A to Attachment 1


PURCHASED ASSET SCHEDULE











Attachment 2


FORM OF BAILEE’S TRUST RECEIPT AND CERTIFICATION


                ,
200  


JPMORGAN CHASE BANK, N.A.

270 Park Avenue, 7th Floor

New York, New York 10017-2014

Attention:              Ms. Nancy S. Alto

Telephone:            (212) 834-9271

Telecopy:              (212) 834-6565


Re:                                  Bailee
Agreement, dated as of             ,
200_ (the “Bailee Agreement”)
among Capital Trust, Inc. (the “Seller”),
JPMorgan Chase Bank, N.A. (the “Buyer”)
and [    ] (the “Bailee”)


Ladies and Gentlemen:


In accordance with the
provisions of Paragraph 3 of the above-referenced Bailee Agreement, the
undersigned, as the Bailee, hereby certifies that as to each Purchased Asset
described in the Purchased Asset Schedule (Exhibit A to Attachment 1), a
copy of which is attached hereto, it has reviewed the Purchased Asset File and
has determined that (i) all documents listed in Schedule A attached
to the Bailee Agreement are in its possession and (ii) such documents have been
reviewed by it and appear regular on their face and relate to such Purchased
Asset, and (iii) based on its examination, the foregoing documents on their
face satisfy the requirements set forth in Paragraph 2 of the Bailee Agreement.


The Bailee hereby
confirms that it is holding each such Purchased Asset File as agent and bailee
for the exclusive use and benefit of Buyer pursuant to the terms of the Bailee
Agreement.


All initially capitalized
terms used herein shall have the meanings ascribed to them in the above-referenced
Bailee Agreement.


[   ],
BAILEE


	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  












 


EXHIBIT XI


[RESERVED]











 


EXHIBIT XII


FORM OF
MARGIN DEFICIT NOTICE


[DATE]/[TIME]


VIA ELECTRONIC TRANSMISSION


CAPITAL TRUST, INC.

410 Park Avenue


New York, New York 10022

Attn: Geoffrey G. Jervis


Re:                                  Master
Repurchase Agreement, dated as of November 1, 2006 (as amended, restated,
supplemented, or otherwise modified and in effect from time to time, the “Master
Repurchase Agreement”; capitalized terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Master Repurchase
Agreement) by and among JPMorgan Chase Bank, N.A. (“Buyer”) and Capital
Trust, Inc., a Maryland corporation(“Seller”).


Pursuant to Article
4(a) of the Master Repurchase Agreement, Buyer hereby notifies Seller of
the existence of a Margin Deficit as of the date hereof as follows:


 


	
  [Repurchase Price for
  specific Purchased Asset:

  	
  $

  	
   

  	
   

  
	
  Asset Value of
  such Purchased Asset:

  	
  $

  	
   

  	
   

  
	
  MARGIN DEFICIT:

  	
  $

  	
   

  	
  ]

  
	
  [Aggregate
  Repurchase Price of all Purchased Assets:

  	
  $

  	
   

  	
   

  
	
  Maximum Amount:

  	
  $

  	
   

  	
   

  
	
  MARGIN DEFICIT:

  	
  $

  	
   

  	
  ]

  



 


SELLER IS REQUIRED TO CURE
THE MARGIN DEFICIT SPECIFIED ABOVE IN ACCORDANCE WITH THE MASTER REPURCHASE
AGREEMENT AND WITHIN THE TIME PERIOD SPECIFIED ARTICLE 4(a) THEREOF.











 


	
  

  	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  












 


EXHIBIT XIII


UCC FILING JURISDICTIONS


Maryland











 


EXHIBIT XIV


[Reserved]


 















 


EXHIBIT XV


ADDITIONAL ELIGIBLE
COLLATERAL


 


	
  

  	
   

  	
  ADDITIONAL ELIGIBLE
  COLLATERAL

  	
   

  	
  REMAINING MATURITY

  FROM THE VALUATION DATE

  	
   

  	
  VALUATION

  PERCENTAGE

  
	
  (1)

  	
   

  	
  US-CASH

  	
   

  	
  Not applicable

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  US-TBILL, US-TNOTE, US-TBOND,

  	
   

  	
  Less than 1 year

  	
   

  	
  99%

  
	
   

  	
   

  	
  US-TIPS

  	
   

  	
  Between 1 and 5 years

  	
   

  	
  98%

  
	
   

  	
   

  	
   

  	
   

  	
  Between 5 and 10 years

  	
   

  	
  97%

  
	
   

  	
   

  	
   

  	
   

  	
  Between 10 and 30 years

  	
   

  	
  95%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  US-STRIP

  	
   

  	
  All maturities

  	
   

  	
  90%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  US-GNMA, US-FNMA,

  	
   

  	
  Less than 1 year

  	
   

  	
  99%

  
	
   

  	
   

  	
  US-FHLMC, US-NCAD,

  	
   

  	
  Between 1 and 5 years

  	
   

  	
  97%

  
	
   

  	
   

  	
  US-NCADN

  	
   

  	
  Between 5 and 10 years

  	
   

  	
  96%

  
	
   

  	
   

  	
   

  	
   

  	
  Between 10 and 30 years

  	
   

  	
  94%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  US-GNMAMBS, US-FNMAMBS,

  US-FHLMCMBS

  	
   

  	
  Not applicable

  	
   

  	
  94%

  



 


Definitions.
As used in this Exhibit XV, the following definitions are specified
below:


US-CASH - United States
of America Dollar (USD) Cash.  The lawful
currency of the United States of America.


US-TBILL - US Treasury
Bills.  Negotiable debt obligations
issued pursuant to USC Title 31, Chapter 31, Section 3104 by the Department of
the Treasury backed by the credit of the United States of America, having a
maturity at issuance of no greater than 1 year.


US-TNOTE - US Treasury Notes.  Negotiable debt obligations issued pursuant
to USC Title 31, Chapter 31, Section 3103 by the Department of the Treasury
backed by the credit of the United States of America, having a maturity at
issuance of at least 1 year but less than 10 years.


US-TBOND - US Treasury
Bonds.  Negotiable debt obligations
issued pursuant to USC Title 31, Chapter 31, Section 3102 by the Department of
the Treasury backed by the credit of the United States of America.











 


US-TIPS - US Treasury
Inflation Protected Issues (TIPS). 
Securities issued by the Department of the Treasury backed by the credit
of the United States of America where the principal is changed based on changes
of the consumer price index.


US-STRIP - US Treasury
Strips.  Securities issued by the
Department of the Treasury backed by the credit of the United States of America
that represent either interest components or principal components stripped from
underlying US treasury obligations under the program of the Department of the
Treasury called “Separate Trading of Registered Interest and Principal
Securities”.


US-GNMA - Callable Agency
Debt of the Government National Mortgage Association (“GNMA”).  Fixed-rate, callable, non-amortizing U.S.
Dollar denominated debt securities; in book entry form issued by GNMA the full
and timely payment of principal and interest of which is guaranteed by the U.S.
Government.


US-FNMA - Callable Agency
Debt of the  Federal National Mortgage
Association (“FNMA”).  Fixed-rate,
callable, non-amortizing U.S. Dollar denominated senior debt securities in book
entry form issued by FNMA.


US-FHLMC - Callable
Agency Debt of the Federal Home Loan Mortgage Corporation (“FHLMC”).  Fixed-rate, callable, non-amortizing U.S.
Dollar denominated senior debt securities in book entry form issued by FHLMC.


US-NCAD - Non-Callable
Agency Debt of Various Issuers. 
Fixed-rate, non-callable, non-amortizing U.S. Dollar denominated senior
debt securities of fixed maturity in book entry form issued by GNMA, FNMA or
FHLMC.


US-NCADN - Non-Callable
Agency Discount Notes of Various Issuers. 
Non-callable U.S. Dollar denominated discount notes sold at a discount
from their principal amount payable at maturity with an original maturity of
360 days or less in book entry form and issued by GNMA, FNMA or FHLMC.


US-GNMAMBS - Government
National Mortgage Association Certificates - Mortgage Backed Securities.  Single-class fully modified pass-through
certificates (GNMA Certificates) in book-entry form backed by single-family
residential mortgage loans, the full and timely payment of principal and
interest of which is guaranteed by the Government National Mortgage Association
(excluding REMIC) or other multi-class pass-through certificates,
collateralized mortgage obligations, pass-through certificates backed by
adjustable rate mortgages, securities paying interest or principal only and
derivatives and similar derivatives securities).


US-FNMAMBS - Federal
National Mortgage Association Certificates - Mortgage Backed Securities.  Single-class fully modified pass-through
certificates (FNMA Certificates) in book-entry form backed by single-family
residential mortgage loans, the full and timely payment of principal and
interest of which is guaranteed by the Federal National Mortgage Association
(excluding REMIC) or other multi-class pass-through certificates,
collateralized mortgage obligations, pass-through certificates backed by
adjustable rate mortgages, securities paying interest or principal only and
derivatives and similar derivatives securities).











 


US-FHLMCMBS - Federal
Home Loan Mortgage Corporation Certificates - Mortgage Backed Securities.  Single-class mortgage participation
certificates (FHLMC Certificates) in book-entry form backed by single-family
residential mortgage loans, the full and timely payment of principal and
interest of which is guaranteed by the Federal Home Loan Mortgage Corporation
(excluding REMIC) or other multi-class pass-through certificates,
collateralized mortgage obligations, pass through certificates backed by
adjustable rate mortgages, securities paying interest or principal only and
derivatives and similar derivatives securities).











 


EXHIBIT XVI


FORM OF SERVICER NOTICE


[DATE]


[SERVICER], as Special Servicer

[ADDRESS]

Attention:                         


Re:                               Master
Repurchase Agreement, dated as of November 1, 2006 by and between JPMorgan
Chase Bank, N.A. (“Buyer”) and Capital Trust, Inc. (“Seller”) (as
amended, restated, supplemented, or otherwise modified and in effect from time
to time, the “Master Repurchase Agreement”); (capitalized terms used but
not otherwise defined herein shall have the meanings assigned thereto in the
Master Repurchase Agreement).


Ladies and Gentlemen:


[SERVICER] (the “Servicer”)
is servicing certain mortgage assets for Seller pursuant to one or more
Servicing Agreements between Servicer and Seller (the “Purchased Assets”).  Pursuant to the Master Repurchase Agreement,
Servicer is hereby notified that Seller has granted a security interest to
Buyer in the Purchased Assets which are serviced by Servicer.


Servicer shall segregate
all amounts collected on account of the Purchased Assets sold to Buyer under
the Master Repurchase Agreement, hold them in trust for the sole and exclusive
benefit of Buyer, and remit such collections to the following account which has
been established at PNC Bank, National Association, ABA# 043-000-096, Account #
102-396-8633, (the “Cash Management Account”).  Servicer acknowledges that the Cash
Management Account is held for the benefit of Buyer pursuant to the Depository
Agreement, dated as of November 1, 2006, by and between Seller, Buyer, Midland
Loan Services, Inc. and PNC Bank, National Association.  Upon receipt of a notice of Event of Default
from Buyer, Servicer shall follow the instructions of Buyer with respect to the
Purchased Assets, and shall deliver to Buyer any information with respect to
the Purchased Assets reasonably requested by Buyer.


Servicer hereby agrees
that, notwithstanding any provision to the contrary in any Servicing Agreement
which exists between Servicer and Seller in respect of any Purchased Asset, (i)
Servicer is servicing the Purchased Assets for the joint benefit of Seller and
Buyer, (ii)  Buyer is expressly intended
to be a third-party beneficiary under each Servicing Agreement and (iii) Buyer
may, at any time, terminate any such Servicing Agreement immediately upon the
delivery of written notice thereof to Servicer and/or in any event transfer
servicing to Buyer’s designee, at no cost or expense to Buyer, it being agreed
that Seller will pay any and all fees 











required to terminate any
Servicing Agreement and to effectuate the transfer of servicing to the designee
of Buyer.


Notwithstanding any
contrary information or direction which may be delivered to Servicer by Seller,
Servicer may conclusively rely on any information, direction or notice of an
Event of Default delivered by Buyer, and Seller shall indemnify and hold
Servicer harmless for any and all claims asserted against Servicer for any
actions taken in good faith by Servicer in connection with the delivery of such
information or notice of Event of Default.


No provision of this
letter may be amended, countermanded or otherwise modified without the prior
written consent of Buyer.  Buyer is an
intended third party beneficiary of this letter.


Please acknowledge
receipt and your agreement to the terms of this instruction letter by signing
in the signature block below and forwarding an executed copy to Buyer promptly
upon receipt.  Any notices to Buyer
should be delivered to the following address: 270 Park Avenue, 7th Floor, New York, NY 10017-2014  Attn: Nancy S. Alto, Telephone: (212)
834-9271, Fax:  (212) 834-6565.


	
  

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [SERVICER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  ACKNOWLEDGED AND AGREED TO:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  CAPITAL TRUST, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


 















EXHIBIT XVII


FORM OF RELEASE LETTER


[Date]


JPMorgan Chase Bank, N.A.

270 Park Avenue, 7th Floor

New York, New York 100017-2014


Attention:              Ms. Nancy S. Alto


Re:          Master Repurchase Agreement, dated as
of November 1, 2006 by and between JPMorgan Chase Bank, N.A. (“Buyer”)
and Capital Trust, Inc. (“Seller”) (as amended, restated, supplemented,
or otherwise modified and in effect from time to time, the “Master
Repurchase Agreement”); (capitalized terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Master Repurchase
Agreement).


Ladies and Gentlemen:


With respect to
the Purchased Assets described in the attached Schedule A (the “Purchased
Assets”) (a) we hereby certify to you that the Purchased Assets are not
subject to a lien of any third party, and (b) we hereby release all right,
interest or claim of any kind other than any rights under the Master Repurchase
Agreement with respect to such Purchased Assets, such release to be effective
automatically without further action by any party upon payment by Buyer of the
amount of the Purchase Price contemplated under the Master Repurchase Agreement
(calculated in accordance with the terms thereof) in accordance with the wiring
instructions set forth in the Master Repurchase Agreement.


Very truly yours,


CAPITAL TRUST, INC.


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Name:

  	
   

  












 


Schedule A


[List of Purchased Asset Documents]











 


EXHIBIT XVIII


[RESERVED]











 


EXHIBIT XIX


FORM OF COVENANT COMPLIANCE CERTIFICATE


[    ] [ 
], 200[  ]


JPMorgan Chase Bank, N.A.

270 Park Avenue, 7th Floor

New York, New York 10017-2014

Attention:  Kunal K. Singh


This Compliance Certificate is furnished pursuant to
that certain Master Repurchase Agreement, dated as of November 1, 2006 (as
amended, restated, supplemented, or otherwise modified and in effect from time
to time, the “Master Repurchase Agreement”) by and among JPMorgan Chase
Bank, N.A. (“Buyer”) and Capital Trust, Inc. (“Seller”).  Unless otherwise defined herein, capitalized
terms used in this Compliance Certificate have the respective meanings ascribed
thereto in the Master Repurchase Agreement.


THE UNDERSIGNED HEREBY CERTIFIES THAT:


1.               I
am a duly elected Responsible Officer of Seller.


2.               All
of the financial statements, calculations and other information set forth in
this Compliance Certificate, including, without limitation, in any exhibit or
other attachment hereto, are true, complete and correct as of the date hereof.


3.               I
have reviewed the terms of the Master Repurchase Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and financial condition of Seller during the accounting period
covered by the financial statements attached (or most recently delivered to
Buyer if none are attached).


4.               I
am not  aware of any facts, or pending
developments that have caused, or may in the future cause the Market Value of
any Purchased Asset to decline at any time within the reasonably foreseeable
future.


5.               As
of the date hereof, and since the date of the certificate most recently
delivered pursuant to Article 12(j) of the Master Repurchase Agreement,
Seller has observed or performed all of its covenants and other agreements in
all material respects, and satisfied in all material respects, every condition,
contained in the Master Repurchase Agreement and the related documents to be
observed, performed or satisfied by it.


6.               The
examinations described in Paragraph 3 above did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes an
Event of Default or Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Compliance Certificate (including after giving effect to any pending
Transactions requested to be entered into), except as set forth below.











 


7.               (A)
As of the date hereof, other than as set forth in clause (B) below, the
representations and warranties made by Seller in Article 10 of the Master
Repurchase Agreement are true, correct and complete in all material respects
with the same force and effect as if made on and as of the date hereof, and (B)
with respect to the representations and warranties set forth in Article
10(b)(x)(D) of the Master Repurchase Agreement, no Material Breach has
occurred.


8.               No
condition or event that constitutes a “Termination Event”, “Event of Default”, “Potential
Event of Default” or any similar event by Seller, however denominated, has
occurred or is continuing under any Hedging Transaction.


9.               Attached
as Exhibit 2 hereto is a description of all interests of Affiliates of
each Seller in any Underlying Mortgaged Property (including without limitation,
any lien, encumbrance or other debt or equity position or other interest in the
Underlying Mortgaged Property that is senior or junior to, or pari passu with, a Mortgage Asset in right
of payment or priority).


10.         Attached
as Exhibit 3 hereto are the financial statements required to be
delivered pursuant to Article 12 of the Master Repurchase Agreement (or, if
none are required to be delivered as of the date of this Compliance
Certificate, the financial statements most recently delivered pursuant to
Article 12 of the Master Repurchase Agreement), which financial statements, to
the best of my knowledge after due inquiry, fairly and accurately present in
all material respects, the financial condition and operations of Seller as of
the date or with respect to the period therein specified, determined in
accordance with the requirements set forth in Article 12.


11.         Attached
as Exhibit 4 hereto are the calculations demonstrating compliance with
the financial covenants set forth in Article 11 of the Master Repurchase
Agreement.


To the best of my
knowledge, Seller has, during the period since the delivery of the immediately
preceding Compliance Certificate, observed or performed all of its covenants
and other agreements in all material respects, and satisfied in all material
respects every condition, contained in the Master Repurchase Agreement and the
related documents to be observed, performed or satisfied by it, and I have no
knowledge of the occurrence during such period, or present existence, of any
condition or event which constitutes an Event of Default or Default (including
after giving effect to any pending Transactions requested to be entered into),
except as set forth below.


Described below are the exceptions, if any, to
paragraph 10, listing, in detail, the nature of the condition or event, the
period during which it has existed and the action which the Parent











or any Seller has taken, is taking, or proposes to
take with respect to each such condition or event:






 






 






 






The foregoing
certifications, together with the financial statements, updates, reports,
materials, calculations and other information set forth in any exhibit or other
attachment hereto, or otherwise covered by this Compliance Certificate, are
made and delivered this       [   
] day of [                ], 200[    ].






Name:


Title: