exv10w7






Exhibit 10.7




ASSET EXCHANGE AGREEMENT




     THIS ASSET EXCHANGE AGREEMENT is made as of the 18th day of November, 2009, by
AURORA BANK FSB, a Federally chartered savings institution (“Aurora”) and CAPITAL CROSSING
PREFERRED CORPORATION, a Massachusetts corporation (“CCPC”). Aurora and CCPC are sometimes
referred to herein singly as a “Party” and collectively as the “Parties”.



RECITALS




     This Agreement contemplates a transaction in which Aurora will transfer to CCPC all of the
Bank Loans described in the Bank Loan Schedule attached hereto as Schedule A and in
consideration for such transfer CCPC will transfer to Aurora all of the REIT Loans described in the
REIT Loan Schedule attached hereto as Schedule B.



AGREEMENT




     In consideration of the mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the Parties agree as follows:


1. Definitions. For purposes of this Agreement, the following terms shall have the
meanings indicated.




     “Adverse Consequences” means all actions, suits, proceedings, hearings, investigations,
charges, complaints, Claims, demands, injunctions, judgments, orders, decrees, rulings, damages,
dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens,
losses, reasonable out-of-pocket expenses, and fees, including court costs and attorneys’ fees and
expenses.



     “Affiliate” means any Person that, directly or indirectly, controls, or is controlled by or
under common control with, another Person. For the purposes of this definition, “control”
(including the terms “controlled by” and “under common control with”), as used with respect to any
Person, means the power to direct or cause the direction of the management and policies of such
Person, directly or indirectly, whether through the ownership of voting securities or by contract
or otherwise.



     “Aggregate Value” means the aggregate of the Exchange Purchase Price, and as set forth on
Schedule A for Bank Loans and Schedule B for REIT Loans.



     “Agreement” means this Asset Exchange Agreement and attachments hereto including, without
limitation, all schedules, exhibits and attachments to this Agreement.



     “Allonge” means an allonge substantially in the form of Exhibit B to be executed and
delivered by the Transferor at Closing to sell, assign and transfer a Note to the Transferee.




	 	 	“Asset” means any Loan.





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     “Asset File” means, with respect to each Asset, all Loan Documents and all documents and
correspondence relating to the origination, administration and servicing of the Loan, to the extent
same are available and held in the related asset file in the possession of the Transferor, as of
the Closing Date, including, without limitation, relevant correspondence, legal opinions, leases,
rent rolls, contracts (management, service, repair, etc.), title insurance policies, insurance
policies and third party reports; as well as any electronic data, e-files and databases to the
extent that same include any of the items listed above for each Asset and are reasonably available
for transfer as part of the Asset File.



     “Asset Group” means a group of two or more Loans, all of which either (a) are secured by all
or part of the same Loan Collateral, (3) are interrelated by the fact that a default under one
results in a default under one or more of the others, or (c) have the same or similar Obligors.



     “Asset Repurchase Price” means, the Exchange Purchase Price, plus any customary, reasonable
and necessary “out of pocket” costs and expenses, including reasonably incurred and paid protective
advances, actually incurred by the Transferee of an Asset during its ownership of such Asset in
connection with the collection, administration and servicing of such Asset, minus any principal
payments received by the Transferee of an Asset during its ownership of such Asset.



     “Assignment” means an instrument in substantially the form of Exhibit C to be
executed, acknowledged and delivered by the Transferor subsequent to Closing (as provided herein)
to sell, assign and transfer the Mortgage securing an individual Loan from the Transferor to the
Transferee.



     “Assignment of Life Insurance” means an instrument in form and substance satisfactory to the
Transferee to be executed and delivered by the Transferor at Closing which assigns to the
Transferee the Transferor’s rights as secured party under any life insurance policy securing a
Loan.



     “Aurora” has the meaning set forth in the preface above.



     “Bank Loan” means a Loan owned on the date hereof by Aurora that is identified on the Bank
Loan Schedule.



     “Bill of Sale” means a bill of sale substantially in the form of Exhibit D to be
executed and delivered by the Transferor at Closing to sell, assign and transfer to the Transferee
all of the rights, title, and interests of the Transferor in the Loans and Loan Documents related
thereto and any payments arising under such Loans and Loan Documents to the Transferee.



     “Business Day” means any day other than a Saturday, Sunday, Federal holiday or state holiday
in New York, or other day on which banks with offices in New York and Massachusetts are authorized
or required to be closed.



     “Call Provisions” has the meaning set forth in Section 7.04.



     “CCPC” has the meaning set forth in the preface above.



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     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq.



     “Certificate of Defect” means a certificate substantially in the form of Exhibit E,
with blanks appropriately completed, which shall identify an Asset with respect to which the
Transferee contends there is a material breach of a representation or warranty of the Transferor
contained in Section 4.



     “Claim” means any claim, Liability, proof of claim (including, without limitation, a proof of
claim filed in bankruptcy proceedings), demand, lien, complaint, summons, legal, equitable or
administrative action, suit, investigation or proceeding of any nature, chose in action, damage,
judgment, order, injunction, decree, penalty or fine, and all losses, costs and expenses relating
to the foregoing (including, without limitation, attorney’s fees and expenses).



     “Closing” means the closing of the transactions contemplated by this Agreement in accordance
with Section 2.02.



     “Closing Date” has the meaning set forth in Section 2.02.



     “Closing Documents” means all documents that under the terms of this Agreement are required to
be delivered by Aurora or CCPC at Closing.



     “Closing Statement” means the document substantially in the form of Exhibit A attached
hereto and incorporated herein, to he prepared by Aurora and executed by Aurora and CCPC at
Closing.



     “Cure Period” means, with respect to a Defective Asset, the period of 30 days commencing on
the date the Transferor delivers to the Transferee a response to a Certificate of Defect with
respect to such Defective Asset in accordance with Section 7.03(b) hereof, which period shall be
extended for an additional period of 60 days (for a total of 90 days) provided that the Transferor
is pursuing with diligence and good faith the cure of a breach of representation or warranty.



     “Cut off Date” means, with respect to the exchange of the assets, the close of business as of
October 31, 2009.



     “Defective Asset” means an Asset as to which the Transferor has breached a representation or
warranty under Section 4 hereof, which breach has a material adverse effect on the Asset, and the
Transferee has timely delivered to the Transferor a Certificate of Defect pursuant to Section 7.03
as to such breach.



     “Exchange Purchase Price” means, with respect to an Asset the “Exchange Purchase Price as
shown on the Loan Schedule for such Asset.



     “Governmental Order” has the meaning set forth in Section 8.01(b).



     “Hazardous Materials” means (a) those substances included with the definitions of any one or
more of the terms “hazardous substances,” “hazardous materials,” “hazardous waste” and



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“toxic substances” in CERCLA, RCRA, and the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Section 1801, et seq., and in the regulations promulgated pursuant thereto; (b)
those substances listed in the United States Department of Transportation Table (49 CFR Section
172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency)
(40 CFR Section 302 and amendments thereto) as hazardous substances; (c) solid waste or hazardous
waste as defined by the Environmental Protection Agency regulations at 40 CFR §261; (d) such other
substances, materials and wastes that are or become regulated under applicable local, state or
Federal laws, or that are classified as hazardous or toxic under Federal, state or local laws or
regulations; and (e) any materials, wastes or substances that are (i) petroleum: (ii)
polychlorinated biphenyls; (iii) within the definition of “hazardous substance” set forth in
Section 311 of the Clean Water Act (33 U.S.C. Section 1321), or designated as “toxic pollutants”
subject to Chapter 26 of the Clean Water Act pursuant to Section 307 of the Clean Water Act (33
U.S.C. Section 1317); (iv) flammable explosives; (v) radioactive materials; or (vi) friable
asbestos.




     “Knowledge” means, with respect to references to Aurora’s Knowledge, the actual knowledge of
the officers of Aurora who are responsible for the day-to-day management of the Bank Loans or, with
respect to references to CCPC’s Knowledge, the actual knowledge of the officers of CCPC who are
responsible for the day-to-day management of the REIT Loans.



     “Legal Requirement” means any law, statute, ordinance, code, rule, regulation, license,
permit, authorization, decision, order, injunction or decree of any governmental entity (or any
independent agency or political subdivision thereof) or any court with appropriate jurisdiction.



     “Liability” means any liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due).



     “Litigation Matters” means all matters pending in any forum that are related to or arose out
of or as the result of any of the Assets including, but not limited to, all arbitrations,
mediations, and judicial proceedings in any local, county, state or Federal court (including any
bankruptcy courts) whether or not the Transferor is a party to or has or has not entered a notice
of appearance in such matters.



     “Loan” means a Bank Loan described in the Bank Loan Schedule or a REIT Loan described in the
REIT Loan Schedule or both, as the context may require, and includes (a) the obligations evidenced
by each Note, any promissory note renewed by a Note, and any promissory note renewing any Note; (b)
any judgments founded upon a Note, to the extent attributable thereto and any lien arising
therefrom: and (c) the proprietary interest of the Transferor in any litigation (including, without
limitation, any foreclosure) or bankruptcy to which the Transferor is a party or claimant based
upon any such Note.



     “Loan Collateral” means any real property, machinery, equipment, fixtures and furnishings,
inventory, cash, certificates of deposit, securities, leases, guaranties, contract rights,
receivables, letters of credit, assignment of life insurance policies, and all other property, real
or personal, tangible or intangible, new or used, securing a Loan.



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     “Loan Documents” means, with respect to each Loan, the following documents, as and if
applicable:



          (a) The Note, and if applicable, one or more allonges, or if an original Note does not exist,
a lost note affidavit, signed in connection with the Loan bearing all intervening endorsements;




          (b) The original of the loan agreement entered into between the borrower and the lender under
the Loan, if any, and all guarantees and indemnities, if any, executed in connection with the Loan;




          (c) The original, filed Mortgage executed in connection with the Loan, or if the original
Mortgage does not exist, a copy of the original with recording information, and if a copy of the
original Mortgage does not exist, the Transferor shall, reasonably promptly after Closing, obtain a
copy from the applicable recording office and deliver the same to the Transferee;




          (d) Copies of all documents, if any, relating to the formation and organization of the
borrower under the Loan, together with all consents and resolutions delivered in connection with
such borrower’s obtaining the Loan:




          (e) All other documents and instruments evidencing, guaranteeing, insuring or otherwise
constituting or modifying or otherwise affecting the Loan, or otherwise executed or delivered in
connection with, or otherwise relating to, the Loan, including all documents establishing or
implementing any lockbox/cash management arrangements and/or reserve or escrow accounts to be
funded by the borrower;




          (f) The original interest rate cap agreement applicable to the Loan, together with an original
of the related assignment of interest rate cap agreement (if any);




          (g) A copy of the opinions of counsel (if any) of the borrower under each Loan;




          (h) A copy of the UCC financing statements, if any, and all necessary UCC continuation
statements with evidence of filing thereon or copies thereof certified by such borrower that such
financing statements have been sent for filing, and UCC assignments;




          (i) The original mortgagee title insurance policy, if any, together with all endorsements
thereto; and




          (j) Copies of all insurance policies relating to each Mortgaged Property required under the
Loan Documents, if any.




     “Loan Schedule” means the loan schedules attached hereto as Schedule A and
Schedule B setting forth as the Cut off Date the following information concerning each Loan
as available:



          (a) the Transferor’s loan or account number;




          (b) name and mailing address for each Obligor;







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          (c) original Principal Balance;




          (d) interest rate in effect;




          (e) stated maturity date and/or call date;




          (f) payment in effect;




          (g) last payment date and next due date;




          (h) Principal Balance as of the Closing Date;




          (i) amount of late payment fees and other charges owing;




          (j) the last known street address of the location of tangible Loan Collateral;




          (k) a code indicating the type of Primary Loan Collateral, if any, securing the Loan and the
priority of the related lien or security interest (e.g., first, second, etc.);




          (l) the priority of the lien of the Primary Loan Collateral, and if the Loan is not secured by
a first and prior lien or security interest in and to the Primary Loan Collateral, a reasonable
estimate of the amount of indebtedness secured by the prior liens and security interests as
reflected in the Loan Documents as of the Closing Date;




          (m) a code indicating whether the Loan bears a fixed rate of interest or an adjustable rate of
interest, and in the case of adjustable rate Loans, the reset date, adjustment formula and the
existence of caps, if any;




          (n) a code indicating if the Loan is in foreclosure;




          (o) a code indicating the attorney status (i.e., whether the Loan has been referred to an
attorney, and if so, the name, address and telephone number of such attorney);




          (p) the amount of any past due real estate taxes, fees or charges with respect to the
Mortgaged Property;




          (q) the annualized amount of all real estate taxes due and payable with respect to the
Mortgaged Property;




          (r) a code indicating whether escrows for taxes, insurance or other charges are collected with
respect to the Loan and the amount of any such escrows collected but not applied for their
designated purposes; and




          (s) if such is the case, a code indicating that the Loan is not personally guaranteed by one
or more guarantors;




          The Loan Schedule may be in the form of more than one list and/or schedule, collectively
setting forth all of the information required.




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     “Lost Note Affidavit” means a lost note affidavit and indemnity in substantially the same form
as Exhibit F attached hereto.



     “Material” or “Materially” means in the case of the breach of any representation or warranty
set forth in Article 4 of this Agreement, a breach as to which CCPC or Aurora reasonably can
demonstrate that the total of: (i) the cost or aggregate cost to cure or remediate such breach,
plus (ii) the diminution in value of the Loan as a result thereof, exceeds $10,000.00.



     “Mortgage” means, with respect to each Loan, a mortgage, deed of trust, deed to secure debt,
assignment of rents or leases or other instrument creating or evidencing a lien or security
interest in or to any Mortgaged Property that secures such Loan.



     “Mortgaged Property” means, with respect to each Loan, any real property (excluding fixtures
covered by a Security Instrument other than a mortgage) securing such Loan.



     “Note” means the original executed promissory note evidencing the indebtedness of an Obligor
under a Loan, or if an original executed promissory note does not exist, a Lost Note Affidavit,
signed in connection with the Loan with a true copy of the Note attached thereto, or other document
(original or true copy) which is sufficient to evidence the indebtedness under the Loan, such that
the Transferee may enforce an action at law to collect such indebtedness, together with the
original of any allonge, rider, addendum or amendment thereto and any assignments thereof.



     “Obligor” means a borrower, mortgagor, guarantor or judgment debtor under a Loan or other
Person who owes payments or is responsible for performance under a Loan.



     “Party” or “Parties” has the meaning set forth in the preface above.



     “Person” means an individual, a partnership, a limited liability company, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization, or
other entity, or a governmental authority (or any department, agency, or political subdivision
thereof).



     “Power of Attorney” means an irrevocable limited power of attorney given by the Transferor
granting the authority to the representatives of the Transferee named therein to execute such
documents and to take such actions as specified therein, all as set forth in the form attached as
Exhibit G hereto.



     “Primary Loan Collateral” means the Loan Collateral specifically set forth in the Loan
Schedule.



     “Principal Balance” means, as of any date of determination, the then unpaid principal balance
of a Loan.



     “RCRA” means the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section
6901. et seq.



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     “REIT Loan” means a Loan owned by CCPC on the date hereof that is identified on the REIT Loan
Schedule.



     “Replacement Loans” has the meaning set forth in Section 7.04.



     “Servicer” means, from and after the Closing Date, any servicer of any or all of the REIT
Loans or the Bank Loans, as applicable, identified by the Transferee of such Loan.



     “Subsidiary” means any corporation, limited liability company, partnership or trust with
respect to which a specified Person (or a Subsidiary thereof) owns a majority of the equity
ownership interests or has the power to vote or direct the management and control thereof.



     “Transferee” means, with respect to the Bank Loans, CCPC, and with respect to the REIT Loans,
Aurora.



     “Transferor” means, with respect to the Bank Loans, Aurora, and with respect to the REIT
Loans, CCPC.



     “UCC” means the Uniform Commercial Code as in effect in the relevant jurisdiction.



     “UCC Financing Statement” means a financing statement executed and filed pursuant to the UCC
as in effect in the relevant jurisdiction.


2. Exchange/Assignment.




     2.01 Exchange and Assignment. On and subject to the terms and conditions of this
Agreement, Aurora agrees to transfer, assign and sell to CCPC all right, title and interest of
Aurora in and to the Bank Loans and in consideration for such transfer CCPC agrees to transfer,
assign and sell to Aurora all right, title and interest of CCPC in and to the REIT Loans.



     2.02 Closing. The closing of the transactions contemplated by this Agreement shall
take place in accordance with this Section 2.02, and at the offices of Aurora located at 1271
Avenue of the Americas, 46th Floor, New York, New York, 10019, commencing at 9:00 a.m.
local time, or at such other place, date or time as the Parties may mutually agree. The closing of
the exchange and assignment of the Loans (the “Closing”) shall occur on the date hereof, or on such
later date as all conditions to Closing set forth in Section 6 have been satisfied (the “Closing
Date”). All Closing deliveries, requirements, adjustments and conditions shall be applicable to the
Closing Date with respect to the Loans.



     2.03 Deliveries at Closing With Respect to the Loans. At the Closing with respect to
each applicable Loan, the Transferor shall execute and deliver or cause to be delivered to the
Transferee or on behalf of the Transferee to the party designated below:



          (a) the Note, together with an Allonge from the Transferor to the Transferee. If directed by
the Transferee, the Transferor shall deliver the Note and Allonges to any other Person;




          (b) the Loan Documents (other than the Note) to the Servicer or any other Person;







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          (c) the Asset File to the Servicer or any other Person;




          (d) the Bill of Sale to the Transferee;




          (e) Powers of Attorney, in such number as may be reasonably requested by the Transferee;




          (f) the Closing Statement; and




          (g) an incumbency certificate of the Transferor together with a certified copy of resolutions
of the Transferor’s Board of Directors evidencing appropriate corporate authority for and approval
of the transactions contemplated by this Agreement accompanied by a certificate of an officer or
in-house legal counsel of the Transferor attesting to the accuracy and continued effectiveness of
the resolutions.




     2.04 Additional Deliveries. Within one hundred eighty (180) days after the Closing,
(i) the Transferee shall prepare or cause the Servicer to prepare an Assignment for each Loan and
present it for execution by the Transferor, and the Transferor shall thereafter execute such
Assignment and make it available to the Transferee or its designee; and (ii) the Transferee shall
cause such Assignment to be recorded with the proper recording office and concurrently shall
deliver to the custodian a copy of such Assignment with evidence of recording and an assignment of
mortgage in blank executed by the Transferee. Following the Closing, upon request by the
Transferee, and without payment of further consideration and with no further liability to the
Transferee, the Transferor shall execute, acknowledge and deliver or cause to be executed,
acknowledged and delivered to the Transferee such further instruments, documents and assurances, as
may be required from time to time to complete the transactions contemplated by this Agreement,
including any such other documents as are customarily delivered by assignors of similar loans and
which have been reasonably requested by the Transferee, including without limitation, assignments
of life insurance policies, assignments of collateral accounts and assignments of documents or
other property which have been pledged to secure a Loan. The Transferor may elect to permit the
Transferee to execute and, if not timely executed and delivered by the Transferor, the Transferee
shall be permitted to execute on behalf of the Transferor, pursuant to the Power of Attorney, the
additional documents described in this Section 2.04 or in a separate writing signed by the
Transferor.



     2.05 Transfer and Recordation Fees and Taxes; Other Costs. The Transferor shall pay
all transfer, filing and recording fees and taxes, reasonable out-of-pocket costs and expenses, and
all state, county or city documentary taxes, if any, relating to the filing or recording of any
Mortgage and any Loan Document or the assignment of any Loan Document in accordance with all Legal
Requirements, with the exception of the tiling and recording fees for filing of UCC-3 transfers and
assignments which will be paid by the Transferee. The Transferee shall pay all transfer tax, and
the Transferee shall prepare the necessary forms in connection with such Closing Documents. The
Transferor shall execute such forms to the extent required by Legal Requirements. Any of the
foregoing costs which cannot be determined or paid at Closing shall be paid by the Party
responsible post-Closing promptly after such amounts are determined or payable.



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     2.06 Delivery of Files. The Transferee shall take delivery or constructive delivery,
as the case may be, of all Asset Files on the Closing Date. After Closing, the Transferor shall
have no responsibility for the safekeeping of the Asset Files and all risk of loss or damage with
respect to such files shall be borne by the Transferee. All expenses incurred with respect to the
shipment of such files to the Transferee or the Transferee’s agent shall be paid by the Transferee.
The Transferee agrees to abide by all Legal Requirements regarding the preservation and maintenance
of all Loan Documents and records relating to the Loans transferred to it, including but not
limited to the length of time such documents and records are to be retained. After delivery of the
Asset Files to the Transferee, the Transferor may continue to use, inspect and make extracts from
or copies of such files, to the extent available, in each case upon the Transferor’s reasonable
notice to the Transferee and at the Transferor’s expense.



     2.07 Conditional Delivery of Closing Documents. In order to expedite Closing, each
Party shall have the right to execute and deliver Closing Documents (in the forms required by this
Agreement and dated as of the Closing Date determined in accordance with this Agreement) to the
other Party prior to Closing. Each such delivery prior to Closing shall be subject to the
conditions subsequent (without the necessity of the delivering Party repeating such conditions upon
any such delivery) that (i) each such delivery shall be effective only upon the completion of
Closing in accordance with this Agreement, and (ii) if this Agreement is terminated or if Closing
is not completed prior to the date herein specified for Closing, then the receiving Party shall
promptly return all such Closing Documents to the delivering Party.



     2.08 Review of Asset Files.Prior to Closing, the Transferor will permit
representatives of the Transferee to have full access at all reasonable times upon reasonable prior
notice to the Transferor, and in a manner so as not to interfere with the normal business
operations of the Transferor to all Asset Files.



     2.09 Warranty Matters. The Transferor shall promptly notify the Transferee of any
failure of an Asset to comply with the representations and warranties set forth in Section 4 of
which the Transferor obtains Knowledge after the Closing Date.



     2.10 Notice of Claims. The Transferor shall promptly notify the Transferee of any
Claims made or threatened relating to any Asset of which the Transferor has Knowledge. This
provision shall not require the Transferor to conduct any investigation to determine if any Claims
exist.



     2.11 Commitments. The Transferee agrees to comply with the commitments of the
Transferor relating to modifications to the Loans and the Loan Documents.



     2.12 Post Closing Adjustments. The Transferor and Transferee shall, within sixty (60)
days after Closing, agree to make delivery to CCPC, if necessary, an amount to ensure a transfer of
at least equal value of assets as between the Parties.



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3. Representations and Warranties Concerning the Transaction.




     3.01 Representations and Warranties of Aurora. Except as set forth in the Exception
Schedule, Aurora represents and warrants to CCPC that the statements contained in this Section 3.01
are correct and complete as of the date of this Agreement.



          (a) Organization. Aurora is a Federally chartered, regulated and insured
savings institution, and is duly organized and validly existing under the laws of the United States
of America.




          (b) Authority. Aurora has taken all necessary action to authorize its
execution, delivery and performance of, and has the power and authority to execute, deliver and
perform its obligations under, this Agreement and all Closing Documents, and to consummate the
transactions contemplated hereby and thereby.




          (c) Enforceability. This Agreement, all Closing Documents and all of the
obligations of Aurora hereunder and thereunder are the legal, valid and binding obligations of
Aurora, enforceable against Aurora in accordance with their terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors’ rights generally and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).




          (d) No Conflict; Consents. Neither Aurora’s execution and delivery of this
Agreement nor the performance of its obligations hereunder will conflict with any provision of any
Legal Requirement to which Aurora is subject, nor conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of any agreement to which
Aurora is a party or by which it is bound. Aurora has obtained all consents, approvals,
authorizations and orders of any court or governmental agency or body required for its execution,
delivery and performance of this Agreement.




          (e) Pending Legal Action. To Aurora’s Knowledge, there is no action, suit
or proceeding pending against Aurora in any court or by or before any other governmental agency or
instrumentality which if determined adversely to Aurora would materially or adversely affect the
ability of Aurora to carry out the transactions contemplated by this Agreement.




          (f) Brokers’ Fees. Aurora does not have any agreement, liability or
obligation to pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which CCPC could become liable or obligated.




          (g) Aurora’s Financial Condition. Aurora is not insolvent as of the date
of this Agreement and shall not be rendered insolvent by the consummation of the transactions
contemplated by this Agreement. For the purposes of this Agreement, “insolvent” shall mean that the
value of Aurora’s liabilities exceeds the value of Aurora’s assets or that Aurora is generally
unable to pay its debts as and when due.




     3.02 Representations and Warranties of CCPC. CCPC represents and warrants to Aurora
that the statements contained in this Section 3.02 are correct and complete as of the date of this
Agreement.



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          (a) Organization. CCPC is a Massachusetts corporation and is duly organized, validly
existing, and in good standing under the laws of the State of Massachusetts.




          (b) Authority. CCPC has taken all necessary action to authorize its execution,
delivery and performance of, and has the power and authority to execute, deliver and perform its
obligations under, this Agreement and all Closing Documents, and to consummate the transactions
contemplated hereby and thereby.




          (c) Enforceability. This Agreement, all Closing Documents and all the obligations of
CCPC hereunder and thereunder are the legal, valid and binding obligations of CCPC, enforceable
against CCPC in accordance with their terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement
of creditors’ rights generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).




          (d) No Conflict; Consents. Neither CCPC’s execution and delivery of this Agreement nor
the performance of its obligations hereunder will conflict with any provision of any Legal
Requirement to which CCPC is subject, nor conflict with or result in a breach of or constitute a
default under any of the terms, conditions or provisions of any agreement to which CCPC is a party
or by which it is bound. CCPC has obtained all consents, approvals, authorizations and orders of
any court or governmental agency or body required for its execution, delivery and performance of
this Agreement.




          (e) Pending Legal Action. To CCPC’s Knowledge, there is no action, suit or proceeding
pending against CCPC in any court or by or before any other governmental agency or instrumentality
which if determined adversely to CCPC would materially and adversely affect the ability of CCPC to
carry out the transactions contemplated by this Agreement.




          (f) Brokers’ Fees. CCPC does not have any agreement, liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which Aurora could become liable or obligated.




          (g) CCPC’s Financial Condition. CCPC is not insolvent as of the date of this Agreement
and shall not be rendered insolvent by the consummation of the transactions contemplated by this
Agreement. For the purposes of this Agreement, “insolvent” shall mean that the value of CCPC’s
liabilities exceeds the value of CCPC’s assets or that CCPC is generally unable to pay its debts as
and when due.



4. Representations, Warranties and Covenants Concerning the Assets.




     4.01 Representations and Warranties Concerning the Bank Loans. Subject to the
limitations of survival in Section 7.01 of this Agreement, Aurora represents and warrants to CCPC
with respect to each Bank Loan that the statements contained in this Section 4.01 are correct and
complete as of the date of this Agreement.



          (a) Ownership. Aurora is the sole legal and beneficial owner and holder of all rights,
title and interest in and to the Bank Loans, free and clear of any and all liens, security
interests, pledges, charges, or rights of redemption. Aurora has full right and authority to sell,






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assign and transfer each of the Bank Loans without the consent of any Person, except for
consents that have or will be obtained on or before the Closing Date. Upon conveyance of each Bank
Loan to CCPC, no Person other than CCPC will have any right, title or interest in and to each Bank
Loan, including any payments made on or in respect of the Bank Loan, except as otherwise provided
in this Agreement. No Person has any servicing rights related to the Bank Loan, except as
contemplated by this Agreement.




          (b) No Right to Future Advances; Commitments. Each Bank Loan is fully funded and
advanced, and no Person has any right to receive or compel disbursement of any additional loan
proceeds or future advances with respect to any of the Bank Loans, nor are there any outstanding
commitments to modify or restructure any of the Bank Loans.




          (c) Enforceability. Each of the Loan Documents related to the Bank Loans is the legal,
valid and binding obligation of the Obligor, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law). The Note
with respect to each Bank Loan is not subject to any right of rescission, set-off, counterclaim or
defense. The Bank Loan is secured by a valid and enforceable lien on or security interest (with the
priority disclosed on the Bank Loan Schedule) in the Loan Collateral for such Bank Loan having the
priority indicated on the Bank Loan Schedule. The Loan Documents related to the Bank Loans, taken
together as a whole, contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practicable realization against the Loan Collateral
related to the Bank Loans of the benefits of the security intended to be provided thereby, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law).




          (d) No Modification or Waiver. Except as evidenced in the Asset File by written
documentation, Aurora has not released any Obligor or waived, materially modified, altered,
satisfied, canceled or subordinated the Bank Loans or any Loan Documents or Loan Collateral related
to the Bank Loans in any material respect.




          (e) Litigation. To Aurora’s Knowledge, there is no litigation outstanding, pending or
threatened relating to the Bank Loans.




          (f) No Cross-Collateralization. The Loan Collateral for a Bank Loan does not secure
any obligation other than the Bank Loans transferred pursuant to this Agreement.




          (g) Accuracy of Loan Schedule. Except as may be warranted absolutely and without
reservation in this Agreement, to Aurora’s Knowledge, all information pertaining to the Bank Loans
on the Bank Loan Schedule is true and correct in all respects.




          (h) Loan Balance. The unpaid Principal Balance of each of the Bank Loans is as set
forth on the Bank Loan Schedule.





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          (i) Information. To Aurora’s Knowledge, Aurora did not intentionally exclude
documents or information from the Asset Files for the Bank Loans relating to unfunded commitments,
environmental assessments prepared by third party vendors, appraisals prepared by third party
vendors, or unprivileged pending litigation materials. To Aurora’s Knowledge, no material documents
have been excluded from the Asset Files related to the Bank Loans.




          (j) Financing Statements. As to any Bank Loan for which the Primary Loan Collateral or
material security for the Bank Loan is a UCC security interest in personal property, the UCC
financing statements perfecting such security interest have been properly filed, assigned by UCC-3
assignment statements to Aurora and timely continued by the filing of continuation statements as
necessary to avoid lapse or expiration of perfection and/or loss of priority.




          (k) Title Insurance. As to any Bank Loan for which the Primary Loan Collateral or
material security for the Bank Loan is a Mortgage, an ALTA (or equivalent) policy of mortgagee
title insurance has been issued to insure the Bank Loan or a qualified independent third party has
reviewed title to the Mortgaged Property and has issued a report as to the Lien priority of the
Mortgage.




          (l) Partial Releases. With respect to any Bank Loan for which a portion of the
Mortgaged Property has been released from the Loan Collateral, each partial release was made in the
ordinary course of the administration of the Bank Loan as contemplated by and in accordance with
the Loan Documents or usual and customary servicing practices and for consideration of the net
proceeds of the sale of the portion of the Mortgaged Property released or such other consideration
as was contemplated under the applicable Loan Documents or usual and customary servicing practices
with all such consideration of each such partial release having been applied to the indebtedness
owing under the Bank Loan and any proceeds from such partial release were applied to reduce the
principal balance of the related Bank Loan. Each of the Loan Documents and all of the Loan
Collateral related to such Bank Loan remaining after each such partial release continued in full
force and effect, unaffected by such partial release.




     4.02 Representations and Warranties Concerning the REIT Loans. Subject to the
limitations of survival in Section 7.01 of this Agreement and except as set forth in the REIT Loan
Schedule, CCPC represents and warrants to Aurora with respect to each REIT Loan that the statements
contained in this Section 4.02 are correct and complete as of the date of this Agreement.



          (a) Ownership. CCPC is the sole legal and beneficial owner and holder of all rights,
title and interest in and to the REIT Loans, free and clear of any and all liens, security
interests, pledges, charges, or rights of redemption. CCPC has full right and authority to sell,
assign and transfer each of the REIT Loans without the consent of any Person, except for consents
that have or will be obtained on or before the Closing Date. Upon conveyance of each REIT Loan to
Aurora, no Person other than Aurora will have any right, title or interest in and to each REIT
Loan, including any payments made on or in respect of the REIT Loan, except as otherwise provided
in this Agreement. No Person has any servicing rights related to the REIT Loan, except as
contemplated by this Agreement.






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          (b) No Right to Future Advances; Commitments. Except as set forth on the Exception
Schedule, each REIT Loan is fully funded and advanced, and no Person has any right to receive or
compel disbursement of any additional loan proceeds or future advances with respect to any of the
REIT Loans, nor are there any outstanding commitments to modify or restructure any of the REIT
Loans.




          (c) Enforceability. Each of the Loan Documents related to the REIT Loans is the legal,
valid and binding obligation of the Obligor, enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law). The Note
with respect to each REIT Loan is not subject to any right of rescission, set-off, counterclaim or
defense. The REIT Loan is secured by a valid and enforceable lien on or security interest (with the
priority disclosed on the REIT Loan Schedule) in the Loan Collateral for such REIT Loan having the
priority indicated on the REIT Loan Schedule. The Loan Documents related to the REIT Loans, taken
together as a whole, contain customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practicable realization against the Loan Collateral
related to the REIT Loans of the benefits of the security intended to be provided thereby, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity
(regardless of whether enforceability is considered in a proceeding in equity or at law).




          (d) No Modification or Waiver. Except as evidenced in the Asset File by written
documentation, CCPC has not released any Obligor or waived, materially modified, altered,
satisfied, canceled or subordinated the REIT Loans or any Loan Documents or Loan Collateral related
to the REIT Loans in any material respect.




          (e) Litigation. To CCPC’s Knowledge, there is no litigation outstanding, pending or
threatened relating to the REIT Loans.




          (f) No Cross-Collateralization. The Loan Collateral for a REIT Loan does not secure
any obligation other than the REIT Loans transferred pursuant to this Agreement.




          (g) Accuracy of Loan Schedule. Except as may be warranted absolutely and without
reservation in this Agreement, to CCPC’s Knowledge, all information pertaining to the REIT Loans on
the REIT Loan Schedule is true and correct in all respects.




          (h) Loan Balance. The unpaid Principal Balance of each of the REIT Loans is as set
forth on the REIT Loan Schedule.




          (i) Information. To CCPC’s Knowledge, CCPC did not intentionally exclude documents or
information from the Asset Files for the REIT Loans relating to unfunded commitments, environmental
assessments prepared by third party vendors, appraisals prepared by third party vendors, or
unprivileged pending litigation materials. To CCPC’s Knowledge, no material documents have been
excluded from the Asset Files related to the REIT Loans.







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          (j) Financing Statements. As to any REIT Loan for which the Primary Loan Collateral or
material security for the REIT Loan is a UCC security interest in personal property, the UCC
financing statements perfecting such security interest have been properly filed, assigned by UCC-3
assignment statements to CCPC and timely continued by the filing of continuation statements as
necessary to avoid lapse or expiration of perfection and/or loss of priority.




          (k) Title Insurance. As to any REIT Loan for which the Primary Loan Collateral or
material security for the REIT Loan is a Mortgage, an ALTA (or equivalent) policy of mortgagee
title insurance has been issued to insure the REIT Loan or a qualified independent third party has
reviewed title to the Mortgaged Property and has issued a report as to the lien priority of the
Mortgage.




          (l) Partial Releases. With respect to any REIT Loan for which a portion of the
Mortgaged Property has been released from the Loan Collateral, each partial release was made in the
ordinary course of the administration of the REIT Loan as contemplated by and in accordance with
the Loan Documents or usual and customary servicing practices and for consideration of the net
proceeds of the sale of the portion of the Mortgaged Property released or such other consideration
as was contemplated under the applicable Loan Documents or usual and customary servicing practices
with all such consideration of each such partial release having been applied to the indebtedness
owing under the REIT Loan and any proceeds from such partial release were applied to reduce the
principal balance of the related REIT Loan. Each of the Loan Documents and all of the Loan
Collateral related to such REIT Loan remaining after each such partial release continued in full
force and effect, unaffected by such partial release.




     4.03 Further Cooperation. Each of the Transferors covenants and agrees that it shall,
from time to time, and with no further liability to the Transferee, execute and deliver or cause to
be executed and delivered, such additional instruments, assignments, endorsements, papers and
documents as the Transferee may at any time reasonably request for the purpose of carrying out this
Agreement and the transfers provided for herein.


5. Servicing of Loans.




     5.01 Servicing of Loans After Closing. Transferor and Transferee shall cooperate after
Closing to ensure appropriate servicing operations are maintained and continued. In connection
therewith the Parties shall cooperate on continuation, modification or termination of existing
servicing agreements, as the case may be, to ensure such continued servicing operations. The Assets
shall be sold, assigned and transferred to the Transferee on a whole-loan basis. As of the Closing
Date, except as otherwise provided herein, all rights, obligations, liabilities and
responsibilities with respect to the servicing of the Assets conveyed on such date (except those
liabilities existing on or before the applicable Closing Date) shall pass to the Transferee.



     5.02 Tax Reporting. The Transferee shall file with the Internal Revenue Service and
each applicable state and local taxing authority, all forms, reports and information returns for
the Loans acquired by it at the Closing which, pursuant to Legal Requirements, are to be filed for
the portion of the calendar year 2009 occurring after the Closing Date. The Transferor shall file
with the Internal Revenue Service and each applicable state and local taxing authority all forms,
reports



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and informative returns for the Loans transferred by it at the Closing which pursuant to Legal
Requirements are to be filed for the portion of the calendar year ending on the Closing Date.




     5.03 Further Cooperation. After the Closing Date, each of the Transferors shall, upon
the applicable Transferee’s reasonable request, execute and deliver to the Transferee such
additional assignments, endorsements, financing statements and other documents as shall be
required, in the Transferee’s reasonable judgment, to convey or perfect the Transferee’s right,
title and interest in any of the Assets and such pleadings or notices of substitution necessary to
substitute the Transferee for the Transferor in all Litigation Matters related to the Loans
transferred to the Transferee at Closing, all of which shall be prepared at the Transferee’s
expense. The Transferee shall prepare and record any such additional assignments, endorsements,
financing statements, substitutions, pleadings or other documents pursuant to this Section 5.03 at
the Transferee’s sole cost and expense. The Transferee shall be responsible for determining the
appropriate location and records in which to file any assignments, endorsements, financing
statements, substitutions, pleadings or other documents delivered pursuant to this Section 5.03.



     5.04 Litigation. Except as set forth in any Servicing Agreement to the contrary, the
Transferor shall he relieved of any obligation to prosecute, participate in, monitor or pay any
attorney’s fees or other expenses incurred in any Litigation Matters related to the Loans
transferred by the Transferor after the Closing Date. The Transferor shall cooperate with the
Transferee with respect to the transition of all such Litigation Matters, including by providing to
the Transferee information and documentation pertinent to the Litigation Matters.


6. Conditions to Obligation to Close.




     6.01 Conditions to Obligation of CCPC. The obligation of CCPC to consummate the
transactions to be performed by it in connection with the Closing is subject to satisfaction of the
following conditions:



          (a) the representations and warranties set forth in Section 3.01 and Section 4.01 above shall
be true and correct in all material respects at and as of the Closing Date;




          (b) Aurora shall have performed and complied with all of its covenants hereunder in all
respects through Closing and shall have delivered Schedule A in form reasonably acceptable
to CCPC;




          (c) Aurora shall have delivered to CCPC or to the Servicer on behalf of CCPC in accordance
with Sections 2.03, the Bill of Sale and the Loan Documents and the Allonge for each Bank Loan;




          (d) CCPC shall have consented, at its sole and absolute discretion, to any releases (other
than any release in connection with a payment in full of any such Bank Loan), or other material
modifications, changes, or negotiations occurring after the date of this Agreement and prior to the
Closing Date and affecting or pertaining to any Bank Loan;




          (e) CCPC shall have received all requisite consents and approvals necessary to enter into and
consummate the transactions contemplated by this Agreement and any necessary notice periods shall
have lapsed; and







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          (f) No order, injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition preventing the consummation of the transactions contemplated
by this Agreement shall be in effect. No statute, rule, regulation, order, injunction or decree
shall have been enacted, entered, promulgated or enforced by any governmental authority that
prohibits, materially restricts or makes illegal consummation of the transactions contemplated by
this Agreement.




     CCPC may waive any condition specified in this Section 6.01 if it executes a writing so
stating at or prior to Closing.



     6.02 Conditions to Obligation of Aurora. The obligation of Aurora to consummate the
transactions to be performed by it in connection with the Closing is subject to satisfaction of the
following conditions:



          (a) the representations and warranties set forth in Section 3.02 and Section 4.02 above shall
be true and correct in all material respects at and as of the Closing Date;




          (b) CCPC shall have performed and complied with all of its covenants hereunder in all respects
through Closing and shall have delivered Schedule B in form reasonably acceptable to
Aurora;




          (c) CCPC shall have delivered to Aurora or to the Servicer on behalf of Aurora in accordance
with Sections 2.03, the Bill of Sale and the Loan Documents and the Allonge for each REIT Loan;




          (d) Aurora shall have consented, at its sole and absolute discretion, to any releases (other
than any release in connection with a payment in full of any such REIT Loan), or other material
modifications, changes, or negotiations occurring after the date of this Agreement and prior to the
Closing Date and affecting or pertaining to any REIT Loan. Notwithstanding the foregoing, Aurora
may at its option insist that the REIT Loans are entirely unmodified, as required by Section
4.02(d);




          (e) Aurora shall have received all requisite consents and approvals necessary to enter into
and consummate the transactions contemplated by this Agreement and any necessary notice periods
shall have lapsed; and




          (f) No order, injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition preventing the consummation of the transactions contemplated
by this Agreement shall be in effect. No statute, rule, regulation, order, injunction or decree
shall have been enacted, entered, promulgated or enforced by any governmental authority that
prohibits, materially restricts or makes illegal consummation of the transactions contemplated by
this Agreement.




          Aurora may waive any condition specified in this Section 6.02 if it executes a writing so
stating at or prior to Closing.







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7. Remedies for Breaches of this Agreement.




     7.01 Survival of Representations and Warranties. All of the representations and
warranties of the Parties contained in Section 3.01 and Section 3.02 of this Agreement shall
survive Closing and continue in full force and effect for a period of five (5) years thereafter.
The representations and warranties in Section 4.01 and Section 4.02 shall survive Closing and
continue in full force and effect for a period of one (1) year thereafter.



     7.02 Scope of Investigation and Other Due Diligence. The Parties agree that the
representations and warranties in Section 4.01 and Section 4.02 are made for the purpose of
establishing a remedy for the Transferee in the event that matters mutually assumed by the Parties
are not as assumed by them. The Parties understand that if any of the representations or warranties
in Section 4.01 or Section 4.02 are breached, the Transferee’s rights and remedies are limited to
those expressly set forth in Section 7.03. In no event shall a breach of a representation or
warranty in Section 4.01 or Section 4.02 be used as evidence of, or deemed to constitute bad faith,
misconduct or fraud even in the event that it is shown that the Transferor or any Affiliates
thereof, or any of its or their respective directors, employees, officers, lawyers, accountants or
agents, knew or should have known of the existence of information which was inconsistent with any
of the representations and warranties provided in Section 4.01 or Section 4.02, as applicable.



     7.03 Repurchase of Defective Assets.



          (a) Notice of a Breach. In the event of a Material breach by Aurora of a
representation or warranty contained in Section 4.01 with respect to the Bank Loans or by CCPC of a
representation or warranty contained in Section 4.02 with respect to the REIT Loans, Aurora in the
case of a representation or warranty contained in Section 4.02 and CCPC in the case of
representation or warranty contained in Section 4.01 shall have the right to give the Transferor a
Certificate of Defect no later than 30 days following the determination by the Transferee of the
breach thereof. If a Certificate of Defect is delivered by the Transferee in a timely fashion but
is considered by the Transferor to be deficient in any respect, so long as it substantially
complies with the requirements of this Agreement, the Transferee shall be afforded a reasonable
period of time by the Transferor, not to exceed 30 days after notice from the Transferor specifying
such deficiencies in reasonable detail, in order to supplement such Certificate and cure any
deficiencies; and such Certificate, but only so long as it substantially complies as aforesaid,
shall be deemed sufficient to avoid termination and extinguishment of the Transferee’s rights
hereunder. Each of the Transferors agrees to use commercially reasonable efforts to cure any lapses
of or missing assignments, transfer documents or the like in the chain of title to the Note or in
the Collateral Security therefor related to a Loan transferred by such Transferor at the Closing by
obtaining from prior transferors any such missing assignments and/or transfer documents. If the
Transferee delivers a Certificate of Defect which is part of an Asset Group, then, unless the
Transferee elects otherwise in such Certificate of Defect, the Certificate of Defect shall be
deemed to cover all Assets in such Asset Group.




          (b) Transferor’s Response. By no later than 45 days following its receipt of a
Certificate of Defect, the Transferor shall notify the Transferee in writing that the Transferor:
(i) disputes that the alleged defect or breach exists, (ii) intends to attempt to cure such defect
or breach within the Cure Period or (iii) will repurchase the allegedly Defective Assets, or if and
as






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the Parties mutually agree, will remit to the Transferee a payment with respect to such
allegedly Defective Asset in an amount reflecting the diminution in value of the Defective Asset,
and the date on which such payment shall occur, which in no event shall be later than 10 days after
the Transferor’s response, If the Transferor has given the Transferee notification of the
Transferor’s intention to attempt to cure, and if before the end of the Cure Period, the Transferor
has failed to cure the defect or breach, then the Transferor shall repurchase the Defective Assets
within 10 days following the end of such Cure Period. If the Transferor fails to provide such
notice within forty five (45) days following its receipt of a Certificate of Defect, the Transferee
shall provide a second copy of such Certificate of Defect to the Transferor, and if the Transferor
fails to provide the notice required under this Section within ten (10) days following its receipt
of such second copy of the Certificate of Defect it shall be deemed to have agreed to repurchase
the Defective Asset and shall repurchase the Defective Assets within fifteen (15) days following
its receipt of the second copy of the Certificate of Defect.




          (c) Repurchase. If the Transferor becomes obligated by this Agreement to repurchase
any Defective Assets from the Transferee, then (i) closing of such repurchase shall occur within 10
days after the Transferor’s repurchase obligation is determined, (ii) at such closing the
Transferor shall pay the Transferee by wire transfer to an account designated by the Transferee,
the Asset Repurchase Price, and (iii) the Transferee shall convey the Defective Assets to
Transferor, pursuant to documents substantially the same as the applicable Closing Documents
originally delivered to the Transferee by the Transferor, and shall make deliveries and take all
other appropriate action on the same terms and conditions under which the Transferor had conveyed
such Defective Assets to the Transferee. Such conveyance(s) by the Transferee shall be without
recourse, representation, or warranty (express or implied) of any kind except as follows: (1) the
Transferee is the owner of the affected Assets and has the authority to transfer such Assets free
and clear of any liens to the Transferor; (2) the terms of such Assets have not been modified by
any written or oral agreement between the Transferee and any Obligor; (3) the Transferee has not
obtained full payment on such Assets from any Obligor, guarantor or surety, or otherwise accepted
partial payment thereof in full satisfaction of the debt evidenced thereby; (4) the Transferee has
not released any collateral other than for adequate payment to the Transferee and has not released
any Obligor, guarantor, surety or other person liable for payment of such Assets, (5) the
Transferee has not subordinated or released any security interests or liens in any collateral that
secures such Assets, and (6) the Transferee has not allowed any liens or security interests that
secure such Assets to lapse or become unperfected.




          (d) Materiality or Defect Thresholds. The requirements that a breach be “Material” for
application of the remedies set forth in Section 7 shall not limit (or reduce or be a credit
against) the responsibility of the Transferor to, at its option, effect a full cure of the breach
or to repurchase the Loan under this Section 7 after the defect has been determined to meet such
threshold.




     7.04 Call Provisions. CCPC acknowledges that certain of the Bank Loans transferred to
CCPC pursuant to this Agreement are subject to a call provision in favor of the current servicer
for such Bank Loans (the “Call Provisions”). CCPC further acknowledges that the Call Provisions
provide the servicer with the right to require the owner to sell these Bank Loans to the servicer
and that such Bank Loans will be transferred to CCPC subject to the Call Provisions. In the event
that the Call Provisions with respect to one or more of the Bank Loans are exercised, Aurora and



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CCPC will work together in good faith to make arrangements for the transfer by Aurora of
replacement loans that are acceptable to CCPC, in its sole discretion, at fair value at the time of
the exercise of the Call Provisions (the “Replacement Loans”) Aurora will make the representations
and warranties set forth in Section 4.01 of this Agreement with respect to the Replacement Loans
and execute such other documentation as may be reasonably requested by CCPC with respect to the
transfer of the Replacement Loans. Promptly upon the consummation of the transfer of the
Replacement Loans to CCPC, CCPC shall pay to Aurora the aggregate consideration received by CCPC
from the servicer with respect to the exercise of the Call Provisions.




     7.05 Indemnification Provisions for Benefit of CCPC. Aurora shall indemnify, defend
and hold CCPC harmless for the following: (i) the breach by Aurora of any of the covenants of this
Agreement to be performed by Aurora; (ii) any and all liabilities arising out of the tortious or
unlawful acts or omissions of Aurora in regard to any Bank Loan prior to the Closing Date,
including but not limited to any “lender liability” or similar claims asserted against CCPC to the
extent such claims arose out of actions or omissions of Aurora, or other events, that occurred
prior to the Closing Date; or (iii) any amount owed to attorneys or other persons for services
provided to Aurora or Aurora’s predecessor in interest with respect to any Bank Loan.
Notwithstanding the foregoing, this indemnification provision does not apply to a breach of
warranty by Aurora under Section 3.01 or Section 4.01 of this Agreement, regardless of whether
Aurora had Knowledge of a matter which was the subject of the warranty.



     7.06 Indemnification Provision for Benefit of Aurora. CCPC shall indemnify, defend and
hold Aurora harmless for the following: (i) the breach by CCPC of any of the covenants of this
Agreement to be performed by CCPC; (ii) any and all liabilities arising out of the tortious or
unlawful acts or omissions of CCPC in regard to any REIT Loan prior to the Closing Date, including
but not limited to any “lender liability” or similar claims asserted against Aurora to the extent
such claims arose out of actions or omissions of CCPC, or other events, that occurred prior to the
Closing Date; or (iii) any amount owed to attorneys or other persons for services provided to CCPC
or CCPC’s predecessor in interest with respect to any REIT Loan. Notwithstanding the foregoing,
this indemnification provision does not apply to a breach of warranty by CCPC under Section 3.02 or
Section 4.02 of this Agreement, regardless of whether CCPC had Knowledge of a matter which was the
subject of the warranty.


8. Termination.




     8.01 Termination of Agreement. The Parties may terminate this Agreement as provided
below:



          (a) Aurora and CCPC may terminate this Agreement by mutual written consent at any time prior
to Closing;




          (b) either Aurora or CCPC may terminate this Agreement by written notice to the other Party if
any governmental authority shall have enacted, issued, promulgated, enforced or entered any
injunction, order, decree or ruling or taken any other action (including the failure to have taken
an action) which, in either case, has become final and non-appealable and has the effect of making
consummation of the transactions contemplated by this Agreement illegal or






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otherwise preventing or prohibiting consummation of the transactions contemplated by this
Agreement (“Governmental Order”), and such Governmental Order shall have become final and
unappealable; provided, however, that the terms of this Section 8.01(b) shall not
be available to any Party unless such Party shall have used its reasonable best efforts to oppose
any such Governmental Order or to have such Governmental Order vacated or made inapplicable to the
transactions contemplated by this Agreement;




          (c) CCPC may terminate this Agreement by giving written notice to Aurora at any time prior to
Closing in the event Aurora has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, and CCPC has notified Aurora of the breach,
and the breach has continued without cure for a period of 10 days after the notice of breach; and




          (d) Aurora may terminate this Agreement by giving written notice to CCPC at any time prior to
Closing in the event CCPC has breached any material representation, warranty, or covenant contained
in this Agreement in any material respect, and Aurora has notified CCPC of the breach, and the
breach has continued without cure for a period of ten (10) days after the notice of the breach.




     8.02 Effect of Termination. If any Party terminates this Agreement pursuant to Section
8.01 above, all rights and obligations of the Parties hereunder shall terminate without any
Liability of any Party to any other Party.


9. Miscellaneous.




     9.01 Further Actions. If after Closing any further action is necessary or desirable to
carry out the purposes of this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and documents) as any other Party
may request.



     9.02 Press Release and Public Announcements. Either Party may issue a press release or
make a public announcement relating to the subject matter of this Agreement with the prior written
approval of the other Party, such approval not to be unreasonably withheld, except as may be
prohibited under Federal or state law. Each Party, or any of its Affiliates, may make any public
disclosure they believe in good faith is required by applicable law or any listing or trading
agreement concerning their publicly-traded securities (in which case such Party will use its
reasonable best efforts to advise the other Party prior to the disclosure).



     9.03 No Third-Party Beneficiaries. This Agreement shall not confer any rights or
remedies upon any Person other than the Parties and their respective successors and permitted
assigns.



     9.04 Entire Agreement. This Agreement (including the documents referred to herein and
the schedules and exhibits attached hereto) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they relate in any way to the subject matter hereof.



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     9.05 Succession and Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties named herein and their respective successors and permitted assigns. No Party
may assign either this Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of the other party.



     9.06 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one and the same
instrument.



     9.07 Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.



     9.08 Notices. All notices, requests, demands, claims, and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then three Business Days after) it is sent by registered or
certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient
as set forth below:



	 	 	 	 	 
	 

	 	If to Aurora:
	 	Aurora Bank FSB
	 

	 	 	 	1271 Avenue of the Americas, 46th Floor
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Shinjit Ghosh
	 
	 	 	 	 
	 

	 	If to CCPC:
	 	Capital Crossing Preferred Corporation
	 

	 	 	 	1271 Avenue of the Americas, 46th Floor
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Lana Franks





Any Party may send any notice, request, demand, claim, or other communication hereunder to the
intended recipient at the address set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended recipient. Any Party may
change the address to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Parties notice in the manner herein set forth.




     9.09 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW, PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.



     9.10 Amendments and Waivers. No amendment of any provision of this Agreement shall be
valid unless the same shall be in writing and signed by Aurora and CCPC. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or
not, shall be deemed to extend to any prior or subsequent default, misrepresentation,



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or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.




     9.11 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.



     9.12 Expenses. Regardless of whether Closing occurs, each Party shall be responsible
for the payment of all costs and expenses incurred by it in negotiating and performing its
obligations under this Agreement and the transactions contemplated hereby, including, without
limitation, the costs of its due diligence providers, counsel, accountants and consultants.



     9.13 Construction. The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any
of the provisions of this Agreement. The word “including” shall mean including without limitation.
The Parties intend that each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation, warranty, or covenant
contained herein in any respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels of specificity)
which the Party has not breached shall not detract from or mitigate the fact that the Party is in
breach of the first representation, warranty, or covenant.



     9.14 Incorporation of Exhibits and Schedules. The Exhibits and Schedules identified in
this Agreement are incorporated herein by reference and made a part hereof.



     9.15 Limited Purpose of Exchange Purchase Prices. Aurora and CCPC acknowledge that,
although an Exchange Purchase Price for the Assets may be used for certain limited purposes under
this Agreement, such amounts do not represent any allocation of value to the Assets for tax and
accounting purposes. Aurora and CCPC further acknowledge that neither the Exchange Purchase Price
for the Assets nor the Loan balances represent the fair market value of the Assets or the
underlying collateral or mortgage property. Aurora and CCPC expressly reserve the right to allocate
the values for the Assets for Federal and state income tax purposes and their own internal
accounting purposes as they reasonably determine and in a manner different from the Exchange
Purchase Price.



     9.16 Confidentiality. All information disclosed or furnished by one party to another,
whether orally or in writing, in connection with this Agreement and the Transferee’s due diligence
examination of Transferor’s files shall be deemed to be proprietary and confidential information of
the disclosing party. The receiving party agrees not to disclose such information to any third
party other than its representatives or employees, legal counsel, accountants, advisors, or, as
necessary, to applicable regulatory agencies, or as otherwise contemplated in this Agreement or the
Exhibits and Schedules hereto. Regardless of whether closing occurs hereunder, each party agrees
that it shall not use the proprietary or confidential information of the other party for the
purpose of soliciting customers of the other party.



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(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.

SIGNATURES APPEAR ON THE FOLLOWING PAGE.)







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     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	AURORA BANK FSB

 	 
	 	By:  	/s/ William Walenczyk
 	 
	 	 	Name:  	William Walenczyk 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	CAPITAL CROSSING PREFERRED CORPORATION

 	 
	 	By:  	/s/ Lana Harber
 	 
	 	 	Name:  	Lana Harber 	 
	 	 	Title:  	MD 	 
	 





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