EX-10.1






AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT




Dated as of July 28, 2014




by and among

RAIT CMBS CONDUIT I, LLC,




and




RAIT CRE CONDUIT III, LLC,




Collectively, as Seller,




and




CITIBANK, N.A.,




as Buyer

TABLE OF CONTENTS




Page





	1.	 	APPLICABILITY	 






	2.	 	DEFINITIONS	 






	3.	 	INITIATION; CONFIRMATION; TERMINATION; FEES	 






	4.	 	MARGIN MAINTENANCE	 






	5.	 	INCOME PAYMENTS AND PRINCIPAL PAYMENTS	 






	6.	 	SECURITY INTEREST	 






	7.	 	PAYMENT, TRANSFER AND CUSTODY	 






	8.	 	SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED LOANS	 






	9.	 	[INTENTIONALLY OMITTED]	 






	10.	 	REPRESENTATIONS	 






	11.	 	NEGATIVE COVENANTS OF SELLER	 






	12.	 	AFFIRMATIVE COVENANTS OF SELLER	 






	13.	 	SINGLE-PURPOSE ENTITY	 






	14.	 	EVENTS OF DEFAULT; REMEDIES	 






	15.	 	SINGLE AGREEMENT	 






	16.	 	RECORDING OF COMMUNICATIONS	 






	17.	 	NOTICES AND OTHER COMMUNICATIONS	 






	18.	 	ENTIRE AGREEMENT; SEVERABILITY	 






	19.	 	NON-ASSIGNABILITY	 






	20.	 	GOVERNING LAW	 






	21.	 	NO WAIVERS, ETC.	 






	22.	 	USE OF EMPLOYEE PLAN ASSETS	 






	23.	 	INTENT	 






	24.	 	DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS	 






	25.	 	CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL	 






	26.	 	NO RELIANCE	 






	27.	 	INDEMNITY	 






	28.	 	DUE DILIGENCE	 






	29.	 	SERVICING	 






	30.	 	MISCELLANEOUS	 






	31.	 	TAXES	 






	32.	 	CONFIDENTIALITY	 






	33.	 	JOINT AND SEVERAL OBLIGATIONS	 




1









ANNEXES AND EXHIBITS



	 	 	 
	ANNEX I
	 	Names and Addresses for Communications between Parties

	EXHIBIT I
	 	Form of Confirmation

	EXHIBIT II
	 	Authorized Representatives of Seller

	EXHIBIT III
	 	Form of Custodial Delivery

	EXHIBIT IV
	 	Eligible Loan Due Diligence Checklist

	EXHIBIT V
	 	Form of Power of Attorney

	EXHIBIT VI (A)
	 	Representations and Warranties Regarding Each Individual Fixed

Rate Purchased Loan

	EXHIBIT VI (B)
	 	Representations and Warranties Regarding Each Individual

Floating Rate Purchased Loan

	EXHIBIT VII
	 	Collateral Tape

	EXHIBIT VIII
	 	Form of Transaction Request

	EXHIBIT IX
	 	Form of Irrevocable Direction Letter







AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT, dated as of July 28, 2014, by and
among RAIT CMBS CONDUIT I, LLC, a Delaware limited liability company (“Original Seller”),
RAIT CRE CONDUIT III, LLC, a Delaware limited liability company (“New Seller”; together
with Original Seller, collectively, “Seller”), and CITIBANK, N.A., a national banking
association (“Buyer”).



WHEREAS, Original Seller and Buyer entered into that certain Master Repurchase Agreement (the
“Original Master Repurchase Agreement”), dated as of October 27, 2011, as amended by that
certain First Amendment to Master Repurchase Agreement and Other Transaction Documents, dated as of
June 30, 2013 (the “First Amendment”), among Original Seller, Buyer and Sponsor (as defined
herein), that certain Second Amendment to Master Repurchase Agreement, dated as of October 11, 2013
(the “Second Amendment”), among Original Seller, Buyer and Sponsor, and that certain Third
Amendment to Master Repurchase Agreement, dated as of October 11, 2013 (the “Third
Amendment”; together with the Original Master Repurchase Agreement, the First Amendment and the
Second Amendment, collectively, the “Existing Master Repurchase Agreement”), among Original
Seller, Buyer and Sponsor.



WHEREAS, Original Seller, New Seller and Buyer desire to amend and restate the Existing Master
Repurchase Agreement upon the terms and conditions hereinafter set forth, so as to join New Seller
as an additional Seller, jointly and severally with Original Seller under this Agreement, and to
make certain other amendments and modifications as more fully set forth herein.



NOW, THEREFORE, Original Seller, New Seller and Buyer hereby agree that the Existing Master
Repurchase Agreement is hereby amended and restated in its entirety to read as follows:




1. APPLICABILITY



From time to time the parties hereto may enter into transactions in which Seller agrees to
transfer to Buyer Purchased Loans against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Purchased Loans at a date certain, against the
transfer of funds by Seller. 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.




2. DEFINITIONS



“Accelerated Repurchase Date” shall have the meaning specified in Section 14(b)(i) of
this Agreement.



“Acceptable Attorney” means Ledgewood; Alston & Bird LLP; Cadwalader, Wickersham &
Taft LLP; McKenna Long & Aldridge LLP; Dechert LLP; Sills Cummis & Gross P.C. or any other
attorney-at-law acceptable to Buyer in its commercially reasonable discretion.



“Accepted Servicing Practices” shall mean with respect to any Purchased Loan, those
mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans
of the same type as such Purchased Loan in the jurisdiction where the related Mortgaged Property is
located.



“Act of Insolvency” shall mean with respect to any party, (i) the commencement by such
party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization,
liquidation, moratorium, dissolution, delinquency or similar law, or such party seeking the
appointment or election of a receiver, conservator, trustee, custodian or similar official for such
party or any substantial part of its property, or the convening of any meeting of creditors for
purposes of commencing any such case or proceeding or seeking such an appointment or election, (ii)
the commencement of any such case or proceeding against such party, or another seeking such an
appointment or election, or the filing against a party of an application for a protective decree
under the provisions of the Securities Investor Protection Act of 1970, which (A) is consented to
or not timely contested by such party, (B) results in the entry of an order for relief, such an
appointment or election, the issuance of such a protective decree or the entry of an order having a
similar effect, or (C) is not dismissed within 60 days, (iii) the making by such party of a general
assignment for the benefit of creditors, or (iv) the admission in writing by such party of such
party’s inability to pay such party’s debts as they become due.



“Affiliate” shall mean, when used with respect to any specified Person, any other
Person directly or indirectly Controlling, Controlled by, or under common Control with, such
Person.



“Agreement” shall mean this Amended and Restated Master Repurchase Agreement, dated as
of July 28, 2014, by and among RAIT CMBS Conduit I, LLC and RAIT CRE Conduit III, LLC,
collectively, as Seller, and Citibank, N.A. as Buyer, as such agreement may be modified or
supplemented from time to time.



“Alternative Rate” shall have the meaning specified in Section 3(g) 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 each Transaction:




(i) so long as no Event of Default shall have occurred and be continuing, (x) in the
case of a Transaction involving a Fixed Rate Purchased Loan, two hundred fifty basis points
(i.e., 2.50%), and (y) in the case of a Transaction involving a Floating Rate Purchased
Loan, two hundred basis points (i.e., 2.00%),




(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, as
applicable, plus 400 basis points (4.0%).



“Appraisal” shall mean a FIRREA compliant appraisal of the related Mortgaged Property
from a third party appraiser (and containing therein reliance language for the benefit of Buyer) in
form and substance reasonably satisfactory to Buyer.



“Assignment Documents in Blank” shall mean the (i) allonge in blank, (ii) omnibus
assignment in blank, (iii) Assignment of Mortgage in blank, and (iv) assignment of Assignment of
Leases in blank, for each Purchased Loan.



“Assignment of Leases” shall mean, with respect to any Mortgage, an assignment of
leases thereunder, notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the Mortgaged Property is located to reflect the assignment of
leases, subject to the terms, covenants and provisions of this Agreement.



“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.



“Attorney’s Bailee Letter” shall mean a letter from an Acceptable Attorney, in form
and substance acceptable to the Buyer, wherein such Acceptable Attorney in possession of a
Purchased Loan File (i) acknowledges receipt of such Purchased Loan File, (ii) confirms that such
Acceptable Attorney is holding the same as bailee of the Buyer under such letter and (iii) agrees
that such Acceptable Attorney shall deliver such Purchased Loan File to the Custodian by not later
than the third (3rd) Business Day following the Purchase Date for the related Purchased
Loan.



“Blocked Account Agreement” shall mean (i) that certain Blocked Account Agreement,
dated as of October 27, 2011, between Buyer, Original Seller and the Depository, relating to the
Cash Management Account, as the same may be amended, modified and/or restated from time to time,
and (ii) that certain Blocked Account Agreement, dated as of the date hereof, between Buyer, New
Seller and the Depository, relating to the Cash Management Account, as the same may be amended,
modified and/or restated 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. When used with respect to a Pricing Rate Determination Date,
“Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banks in
London, England are closed for interbank or foreign exchange transactions.



“Buyer” shall mean Citibank, N.A., or any successor or assign.



“Capital Stock” shall mean any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent equity
ownership interests in a Person which is not a corporation, including, without limitation, any and
all member or other equivalent interests in any limited liability company, and any and all warrants
or options to purchase any of the foregoing.



“Cash Management Account” shall mean a segregated interest bearing account, in the
name of Seller for the benefit of Buyer, established at the Depository.



“Change of Control” shall mean any of the following events shall have occurred without
the prior approval of the Buyer:



(a) with respect to Original Seller:




(i) Sponsor shall no longer own 100% of the common shares of Taberna Realty Finance
Trust or Taberna Realty Finance Trust shall no longer own, directly or indirectly,
100% of the ownership interest in Original Seller; provided, that Buyer
shall not unreasonably withhold or delay its approval to any request from Sponsor to
reduce either of the aforementioned 100% to a lower percentage (but not less than
51%);




(ii) Sponsor shall no longer Control Original Seller; or




(iii) any conveyance, transfer or disposal of all or substantially all assets of
Original Seller to any Person (other than Buyer or in connection with a
securitization transaction) that does not result in the repurchase by Seller of all
Purchased Loans;



(b) with respect to New Seller:




(i) Sponsor shall no longer own 100% of the Capital Stock of RAIT General, Inc.
(i.e. the sole general partner of RAIT Partnership, L.P.) and RAIT Limited, Inc.
(i.e. the sole limited partner of RAIT Partnership, L.P.), RAIT General, Inc. and
RAIT Limited Inc. shall cease to be the sole general partner and the sole limited
partner of RAIT Partnership, L.P., respectively, or RAIT Partnership, L.P. shall no
longer own 100% of the membership interest in New Seller;




(ii) Sponsor shall no longer Control New Seller; or




(iii) any conveyance, transfer or disposal of all or substantially all assets of New
Seller to any Person (other than Buyer or in connection with a securitization
transaction) that does not result in the repurchase by Seller of all Purchased
Loans; or



(c) any merger, reorganization or consolidation of the Sponsor where the successor entity is
not the Sponsor as of the date of this Agreement.



“Code” shall mean The Internal Revenue Code of 1986 and the regulations promulgated
and rulings issued thereunder, in each case as amended, modified or replaced from time to time.



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



“Collateral Tape” shall mean, with respect to each Eligible Loan, the tape containing
the fields of information set forth in Exhibit VII attached hereto.



“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 Section 3(b) of this Agreement.



“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or
measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.



“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 or by contract, and “Controlling” and “Controlled” shall have meanings
correlative thereto.



“Custodial Agreement” shall mean the Custodial Agreement, dated as of October 27,
2011, by and among Custodian, Original Seller and Buyer, as amended by that certain Amendment No. 1
to Custodial Agreement, dated as of July 28, 2014, among Custodian, Original Seller, New Seller and
Buyer, as the same may be further amended, modified and/or restated from time to time.



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



“Custodian” shall mean Wells Fargo Bank, National Association, or any successor
Custodian appointed by Buyer with the prior written consent of Seller (which consent shall not be
unreasonably withheld or delayed).



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



“Debt Yield (Purchased Loan)” shall mean, with respect to each Purchased Loan, as of
any date of determination, the debt yield equal to the percentage equivalent of the quotient
obtained by dividing (a) the underwritten net cash flow of the related Mortgaged Property, as
determined by Buyer in its sole discretion, by (b) the outstanding Purchase Price of such Purchased
Loan on such date of determination.



“Debt Yield (Underlying Mortgage Loan)” shall mean, with respect to each Purchased
Loan, as of any date of determination, the debt yield equal to the percentage equivalent of the
quotient obtained by dividing (a) the underwritten net operating income of the related Mortgaged
Property, as determined by Buyer in its sole discretion, by (b) the outstanding principal balance
of such Purchased Loan on such date of determination.



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



“Defeasance” shall have the meaning specified in Exhibit VI(A).



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



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



“Due Diligence Package” shall mean (i) the Collateral Tape, (ii) the items on the
Eligible Loan Due Diligence Checklist, in each case to the extent applicable and (iii) such other
documents or information as Buyer or its counsel shall reasonably deem necessary.



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



“Early Repurchase Fee” shall have the meaning given thereto in the Fee Agreement.



“Eligible Loan” shall mean, as applicable, either a Fixed Rate Eligible Loan or a
Floating Rate Eligible Loan.



“Eligible Loan Due Diligence Checklist” shall mean the due diligence materials set
forth in Exhibit IV attached hereto.



“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 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.



“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated thereunder. Section 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 Section 414(b) or (c) of the Code of which Seller is a
member and (ii) solely for purposes of potential liability under Section 302 of ERISA and Section
412 of the Code and the lien created under Section 303(k) of ERISA and Section 430(k) of the Code,
described in Section 414(m) or (o) of the Code of which Seller is a member.



“ESA” shall have the meaning specified in Exhibit VI(A).



“Event of Default” shall have the meaning specified in Section 14(a) of this
Agreement.



“Excluded Taxes” shall mean, any of the following Taxes imposed on or with respect to
payment to Buyer or required to be withheld or deducted from such payment, (a) Taxes imposed on or
measured by net income (however denominated), franchise Taxes, Taxes imposed on or measured by net
worth (however denominated) and branch profits Taxes, in each case, (i) imposed as a result of
Buyer being organized under the laws of, or having its principal office or the office from which it
books the Transactions located in, the jurisdiction imposing such Taxes (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes
imposed on amounts payable to or for the account of Buyer with respect to an interest in the
Transactions pursuant to a law in effect on the date on which such party (i) acquires such interest
in the Transactions or (ii) changes its principal office or the office from which it books the
Transactions, except in each case to the extent that, pursuant to Section 31, amounts with respect
to such Taxes were payable either to such Buyer’s assignor immediately before such Buyer became a
party hereto or to such Buyer immediately before it changed the office from which it books the
Transactions, (c) Taxes attributable to Buyer’s failure to comply with Section 31 of this
Agreement, (d) Taxes attributable to Buyer’s failure to comply with its obligations under Section
23(i) of this Agreement, (e) any withholding Taxes imposed under FATCA, (f) any U.S. federal backup
withholding Taxes imposed under Section 3406 of the Code, and (g) any interest, additions to tax or
penalties in respect of the foregoing.



“Facility Amount” shall mean $200,000,000; provided, however, that the
aggregate outstanding Purchase Price at any time for all Transactions involving Floating Rate
Purchased Loans shall not exceed $100,000,000.



“Facility Expiration Date” shall mean July 28, 2016.



“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable and not materially
more onerous to comply with), any current or future regulations or official interpretations thereof
and, for the avoidance of doubt, any agreements entered into pursuant to any of the foregoing.



“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.



“Fee Agreement” shall mean that certain letter agreement, dated as of July 28, 2014,
between the Seller and the Buyer.



“Filings” shall have the meaning specified in Section 6 of this Agreement.



“FIRREA” shall mean the Financial Institutions, Reform, Recovery and Enforcement Act
of 1989.



“Fixed Rate Eligible Loan” shall mean a performing Whole Loan or Senior Interest in a
Whole Loan which (x) bears interest at a fixed interest rate, (y) is secured by a first lien on one
or more stabilized commercial property(ies) which meet current standards for inclusion in
commercial mortgage-backed securities transactions and (z) is acceptable to Buyer in its sole
discretion.



“Fixed Rate Purchased Loan” shall mean, with respect to any individual Transaction,
the Fixed Rate Eligible Loan sold by Seller to Buyer in such Transaction and “Fixed Rate Purchased
Loans” shall mean, with respect to the Transactions involving Fixed Rate Eligible Loans in general,
all Fixed Rate Eligible Loans sold by Seller to Buyer.



“Floating Rate Eligible Loan” shall mean a performing Whole Loan or Senior Interest in
a Whole Loan which (w) bears interest at a floating interest rate, (x) is secured by a first lien
on one or more commercial property(ies), (y) is acceptable to Buyer in its sole discretion and (z)
satisfies the following criteria:




	 	(i)	 	has a Debt Yield (Underlying Mortgage Loan), as determined by
Buyer in its sole discretion, of not less than 6.00%;






	 	(ii)	 	has an LTV, as determined by Buyer in its sole discretion, of
not greater than 75.00%; provided, however, that as of the
Purchase Date for any individual Transaction, up to $10,000,000 of the
aggregate outstanding Purchase Price may have an LTV of greater than 75.00% but
not greater than 80.00%; and






	 	(iii)	 	has a maximum term, including the exercise of any extensions
options, of not greater than five (5) years.





“Floating Rate Purchased Loan” shall mean, with respect to any individual Transaction,
the Floating Rate Eligible Loan sold by Seller to Buyer in such Transaction and “Floating Rate
Purchased Loans” shall mean, with respect to the Transactions involving Floating Rate Purchased
Loans in general, all Floating Rate Eligible Loans sold by Seller to Buyer.



“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.



“Ground Lease” shall have the meaning specified in Exhibit VI(A).



“Guaranty” shall mean the Amended and Restated Guaranty, dated as of the date hereof,
made by Sponsor for the benefit of Buyer, as the same may be amended, modified and/or restated from
time to time, of amounts due under this Agreement to Buyer, plus any actual, out-of-pocket costs
reasonably incurred in connection with the enforcement, and pursuant to the terms, of such Amended
and Restated Guaranty.



“Hedging Transactions” shall mean, with respect to any or all of the Fixed Rate
Purchased Loans, 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 agreement or similar arrangements providing for protection against fluctuations in interest
rates or the exchange of nominal interest obligations, either generally or under specific
contingencies, entered into by Seller with Buyer or an Affiliate of Buyer or one or more other
counterparties reasonably acceptable to the Buyer.



“Income” shall mean, with respect to any Purchased Loan at any time, the sum of (x)
any principal thereof and all interest, dividends or other distributions thereon and (y) all net
sale proceeds received by Seller in connection with a sale of such Purchased Loan to a Person other
than Buyer.



“Indemnified Amounts” and “Indemnified Parties” shall have the meaning
specified in Section 27 of this Agreement.



“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of Seller under any Transaction
Document and (b) Other Taxes.



“Independent Director” shall mean a duly appointed manager or member of the board of
directors (or managers) of the relevant entity who shall not have been, at the time of such
appointment or at any time while serving as a director or manager of the relevant entity and may
not have been at any time in the preceding five (5) years, (a) a direct or indirect legal or
beneficial owner in such entity or any of its Affiliates, (b) a creditor, supplier, employee,
officer, director (other than in its capacity as Independent Director), family member, manager or
contractor of such entity or any of its Affiliates, or (c) a Person who controls (directly,
indirectly or otherwise) such entity or any of its Affiliates or any creditor, supplier, employee,
officer, director, family member, manager or contractor of such Person or any of its Affiliates.



“Insurance Rating Requirements” shall have the meaning specified in Exhibit VI(A).



“Irrevocable Direction Letter” shall have the meaning specified in Section 5(b).



“Junior Interest” shall have the meaning specified in Exhibit VI(A).



“ISDA Master Agreement” shall mean the ISDA 2002 Master Agreement (including
respective schedules, annexes and confirmations), dated as of August 10, 2011, by and between
Seller and Buyer, as such agreement may be modified or supplemented from time to time.



“LIBOR” shall mean, with respect to each Pricing Rate Period, the rate (expressed as a
percentage per annum and rounded upward, if necessary, to the next nearest 1/1000 of 1%) for
deposits in U.S. dollars, for a one month period, that appears on “Page BBAM” of the Bloomberg
Financial Markets Services Screen (or the successor thereto) as of 11:00 a.m., London time, on the
related Pricing Rate Determination Date. If such rate does not appear on “Page BBAM” of the
Bloomberg Financial Markets Services Screen (or the successor thereto) as of 11:00 a.m., London
time, on such Pricing Rate Determination Date, Buyer shall request the principal London office of
any four major reference banks in the London interbank market selected by Buyer to provide such
bank’s offered quotation (expressed as a percentage per annum) to prime banks in the London
interbank market for deposits in U.S. dollars for a one month period as of 11:00 a.m., London time,
on such Pricing Rate Determination Date for amounts of not less than the Repurchase Price of the
applicable Transaction. If at least two such offered quotations are so provided, LIBOR shall be
the arithmetic mean of such quotations. If fewer than two such quotations are so provided, Buyer
shall request any three major banks in New York City selected by Buyer to provide such bank’s rate
(expressed as a percentage per annum) for loans in U.S. dollars to leading European banks for a one
month period as of approximately 11:00 a.m., New York City time on the applicable Pricing Rate
Determination Date for amounts of not less than the Repurchase Price of such Transaction. If at
least two such rates are so provided, LIBOR shall be the arithmetic mean of such rates. LIBOR
shall be determined by Buyer or its agent, which determination shall be conclusive absent manifest
error (it being understood and agreed that should the Buyer disclose to Seller any information
regarding any reference bank or any rate provided by such reference bank in accordance with this
definition, including, without limitation, whether a reference bank has provided a rate or the rate
provided by any individual reference bank, Seller agrees to maintain the confidentiality of such
information pursuant to Section 32 of this Agreement).



“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

	 







“Lien” shall mean any mortgage, lien, encumbrance, charge or other security interest,
whether arising under contract, by operation of law, judicial process or otherwise.



“LTV” shall mean, with respect to any Floating Rate Purchased Loan, the ratio,
expressed as a percentage, the numerator of which shall equal the outstanding principal balance of
the Purchased Loan and the denominator of which shall equal the “as is” value of the related
Mortgaged Property securing such Purchased Loan as set forth in an Appraisal acceptable to Buyer in
its sole discretion.



“MAI” shall have the meaning specified in Exhibit VI(A).



“Material Adverse Effect” shall mean a material adverse effect on (a) the business,
condition (financial or otherwise) or results of operations (or prospects) of Seller and Sponsor,
taken as a whole, (b) the ability of Seller or Sponsor to pay and perform its obligations under any
of the Transaction Documents, (c) the legality, validity or enforceability of any of the
Transaction Documents, (d) the rights and remedies of Buyer under any of the Transaction Documents,
or (e) the perfection or priority of any Lien granted under any Purchased Loan Document.



“Margin Amount” shall mean, with respect to any Transaction as of any date of
determination, an amount equal to the product of the Margin Percentage and the outstanding Purchase
Price of the Purchased Loan for such Transaction as of such date.



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



“Margin Excess” shall have the meaning specified in Section 4(c) hereof.



“Margin Percentage” shall mean (x) with respect to any Fixed Rate Purchased Loan,
133.33%, and (y) with respect to any Floating Rate Purchased Loan, 166.67%; provided, that if the
Purchase Percentage with respect to any Floating Rate Purchased Loan is less than 60.00%, then the
“Margin Percentage” with respect to such Floating Rate Purchased Loan shall equal the product of
(x) the quotient to two places of 100 divided by the Purchase Percentage expressed as a decimal
(i.e. 55% would be 55) multiplied by (y) 100%.



“Market Value” shall mean with respect to any Purchased Loan, the market value for
such Purchased Loan, as determined by Buyer on each Business Day in its sole good faith discretion.
With respect to any Fixed Rate Purchased Loan, Market Value may be adjusted by Buyer due to either
(i) price, yield or spread movements related to comparable loans or (ii) credit events with respect
to such Fixed Rate Purchased Loan, the related underlying Mortgagor or Mortgaged Property or the
relevant property market related to such Fixed Rate Purchased Loan. Market Value with respect to
any Floating Rate Purchased Loan may be adjusted by Buyer solely due to credit events with respect
to such Floating Rate Purchased Loan, the related underlying Mortgagor or Mortgaged Property or the
relevant property market related to such Floating Rate Purchased Loan. In addition, the Market
Value for any Purchased Loan may be deemed by Buyer to be zero in the event any of the following
occurs with respect to such Purchased Loan: (a) a material breach of a representation or warranty
set forth on Exhibit VI(A) or Exhibit VI(B); (b) a monetary or material non-monetary default by the
underlying Mortgagor (subject to all respective grace and cure periods in the Purchased Loan
Documents); or (c) the Repurchase Date with respect to such Purchased Loan occurs without
repurchase of such Purchased Loan. The value (positive or negative) of any Hedging Transactions
assigned to Buyer or to which Seller and Buyer are parties in connection with each Fixed Rate
Purchased Loan shall be included in the determination of Market Value.



“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 in connection with a Purchased Loan.



“Mortgaged Property” shall mean the real property securing repayment of the debt
evidenced by a Mortgage Note.



“Mortgagee” shall mean the record holder of a Mortgage Note secured by a Mortgage.



“Mortgagor” shall mean the obligor on a Mortgage Note and the grantor of the related
Mortgage.



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



“OFAC List” shall mean the Specially Designated Nationals list maintained by the U.S.
Department of Treasury, Office of Foreign Assets Control (OFAC).



“Other Connection Taxes” shall mean Taxes imposed as a result of a present or former
connection between Buyer and the jurisdiction imposing such Taxes (other than a connection arising
solely as a result of Buyer having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under or
enforced any Transaction Document, or sold or assigned an interest in any Transaction or
Transaction Document).



“Other Taxes” shall mean all present or future stamp, court or documentary,
intangible, recording, filing or similar Taxes that arise from the execution, delivery,
performance, enforcement or registration of, from the receipt or perfection of a security interest
under any Transaction Document; provided, however, that Other Taxes shall not include (i) Taxes
imposed with respect to an assignment, transfer or sale of participation or other interest in or
with respect to the Transaction Documents or (ii) any Excluded Taxes.



“Permitted Encumbrances” shall have the meaning specified in Exhibit VI(A).



“Permitted Purchased Loan Modification” shall mean any modification or amendment of a
Purchased Loan which is not a Significant Purchased Loan Modification.



“Person” shall mean an individual, corporation, limited liability company, business
trust, partnership, joint tenant or tenant-in-common, trust, unincorporated organization, or other
entity, or a federal, state or local government or any agency or political subdivision thereof.



“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 Section 302 of ERISA or Section 412 of the Code, other than a
Multiemployer Plan.



“Plan Party” shall have the meaning specified in Section 22(a) of this Agreement.



“Price Differential” shall mean, with respect to any Transaction as of any date, the
aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the
outstanding Purchase Price for such Transaction on a 360-day-per-year basis for the actual number
of days during the period commencing on (and including) the Purchase Date for such Transaction 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 Transaction).



“Pricing Rate” shall mean, for any Pricing Rate Period, an annual rate equal to the
LIBO Rate for such Pricing Rate Period plus the Applicable Spread for such Transaction and shall be
subject to adjustment and/or conversion as provided in Sections 3(g) and 3(h) of this Agreement.



“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, (a) in the case of the first Pricing Rate Period
with respect to any Transaction, 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 end subsequent to the Repurchase Date.



“Prime Rate” shall mean the prime rate of U.S. commercial banks as published in The
Wall Street Journal (or, if more than one such rate is published, the average of such rates).



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



“Prohibited Person” shall mean any (1) person or entity who is on the OFAC List; a
“designated national,” “specially designated national,” “specially designated terrorist,”
“specially designated global terrorist,” “foreign terrorist organization,” or “blocked person”
within the definitions set forth in the Foreign Assets Control Regulations of the United States
Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as amended, (2) person acting on behalf of,
or an entity owned or controlled by, any government against whom the United States maintains
economic sanctions or embargoes under the Regulations of the United States Treasury Department, 31
C.F.R., Subtitle B, Chapter V, as amended, including, but not limited to, the “Government of
Sudan,” the “Government of Iran,” and the “Government of Cuba,” and any person or organization
determined by the Director of the Office of Foreign Assets Control to be included within 31 C.F.R.
Section 575.306 (definition of “Government of Iraq”), (3) person or entity who is listed in the
Annex to or is otherwise within the scope of Executive Order 13224 — Blocking Property and
Prohibiting Transactions with Person who Commit, Threaten to Commit, or Support Terrorism,
effective September 24, 2001, or (4) person or entity subject to additional restrictions imposed by
the following statutes or Regulations and Executive Orders issued thereunder: the Trading with the
Enemy Act, 50 U.S.C. app. §§ 1 et seq., the Iraq Sanctions Act, Pub. L. 101-513, Title V,
§§ 586 to 586J, 104 Stat. 2047, the National Emergencies Act, 50 U.S.C. §§ 1601 et seq.,
the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214-1319,
the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., the United
Nations Participation Act, 22 U.S.C. § 287c, the International Security and Development Cooperation
Act, 22 U.S.C. § 2349aa-9, the Nuclear Proliferation Prevention Act of 1994, Pub. L. 103-236, 108
Stat. 507, the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. §§ 1901 et seq., the
Iran and Libya Sanctions Act of 1996, Pub. L. 104-172, 110 Stat. 1541, the Cuban Democracy Act,
22 U.S.C. §§ 6001 et seq., the Cuban Liberty and Democratic Solidarity Act, 22 U.S.C.
§§ 6201-91, the Foreign Operations, Export Financing and Related Programs Appropriations Act, 1997,
Pub. L. 104-208, 110 Stat. 3009-172, the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, 115 Stat. 272, or
any other law of similar import as to any non-U.S. country, as each such Act or law has been or may
be amended, adjusted, modified, or reviewed from time to time.



“Purchase Date” shall mean any date on which a Purchased Loan is to be transferred by
Seller to Buyer.



“Purchase Percentage” shall mean (x) with respect to any individual Fixed Rate
Purchased Loan, 75.00%, and (y) with respect to any individual Floating Rate Purchased Loan,
60.00%; provided, however, that with respect to any individual Transaction for a
Floating Rate Purchased Loan, Buyer shall have the right to reduce the Purchase Percentage
applicable to such Transaction to the extent necessary to cause (a) the Purchase Percentage for all
Floating Rate Purchased Loans (on a weighted average basis based upon the outstanding Purchase
Price for all Floating Rate Purchased Loans determined as of the applicable Purchase Date) to not
be greater than 55.00% and (b) the Debt Yield (Purchased Loans) for all Floating Rate Purchased
Loans (on a weighted average basis based upon the outstanding Purchase Price for all Floating Rate
Purchased Loans determined as of the applicable Purchase Date) to not be less than 11.00%.



“Purchase Price” shall mean, with respect to any Purchased Loan, (x) as of any
Purchase Date for any Purchased Loan an amount (expressed in dollars) equal to the product obtained
by multiplying (i) the lesser of (x) the Market Value of such Purchased Loan and (y) the par amount
of such Purchased Loan by (ii) the Purchase Percentage and (y) thereafter, such amount referred to
in clause (x) reduced by (a) any amount applied to reduce the Purchase Price pursuant to Section
4(a) or 5 of this Agreement and increased by (b) any amount transferred by Buyer to Seller pursuant
to Section 4(c) of this Agreement.



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



“Purchased Loan File” shall mean the documents specified as the “Purchased Loan File”
in Section 7(e), together with any additional documents and information required to be delivered to
Buyer or its designee (including the Custodian) pursuant to this Agreement.



“Purchased Loan Schedule” shall mean a schedule of Purchased Loans attached to each
Trust Receipt and Custodial Delivery, which may but is not required to, contain information
substantially similar to the Collateral Tape.



“Purchased Loans” shall mean the Fixed Rate Purchased Loans and the Floating Rate
Purchased Loans, collectively.



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



“Remittance Date” shall mean the fifteenth (15th) calendar day of each month, or the
next succeeding 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.



“Repurchase Date” shall mean, with respect to each Purchased Loan, the earlier of:



(x) the Facility Expiration Date, or




	 	(y)	 	the thirtieth (30th) day of the month (or if such day is not a
Business Day, the immediately succeeding Business Day) in the month following the month
in which the Purchase Date occurs; provided, that notwithstanding the
foregoing, so long as an Event of Default has not occurred and is not continuing as of
such date, the Repurchase Date initially determined pursuant to this clause (y) shall
be automatically extended (i) with respect to each Fixed Rate Purchased Loan, for one
calendar month to the thirtieth (30th) day of the immediately following
month (or if such day is not a Business Day, the immediately succeeding Business Day)
up to five times (i.e. a total of six consecutive months in total) and (ii) with
respect to each Floating Rate Purchased Loan, on a regular monthly basis and without
limitation on the number of times, for one calendar month to the thirtieth
(30th) day of the immediately following month (or if such day is not a
Business Day, the immediately succeeding Business Day), unless the “maturity date” (as
such term is defined and used in the related underlying Purchased Loan Documents) of
such Floating Rate Purchased Loan occurs (as extended in accordance with the underlying
Purchased Loan Documents, and irrespective of whether such date occurs due to
acceleration or otherwise), in which event the Repurchase Date shall be deemed to occur
immediately.





“Repurchase Obligations” shall mean all obligations of Seller to pay the Repurchase
Price on the Repurchase Date and all other obligations and liabilities of Seller to Buyer arising
under or in connection with the Transaction Documents, whether now existing or hereafter arising.



“Repurchase Price” shall mean, with respect to any Purchased Loan as of any date, the
price at which such Purchased Loan is to be transferred from Buyer to Seller upon termination of
the related Transaction; such price will be determined in each case as the sum of (a) the
outstanding Purchase Price of such Purchased Loan, (b) the accrued but unpaid Price Differential
thereon with respect to such Purchased Loan as of such date, (c) all other amounts due and payable
as of such date by Seller to Buyer under this Agreement or any Transaction Document with respect to
such Purchased Loan (including, but not limited to, accrued and unpaid fees, expenses and indemnity
amounts), and (d) with respect to any Fixed Rate Purchased Loan, all amounts, if any, payable in
the event any Hedging Transaction related to such Fixed Rate Purchased Loan is being terminated.



“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 the
Buyer. Notwithstanding anything herein to the contrary, Buyer shall not implement Reserve
Requirements for purposes of determining the LIBO Rate unless Buyer shall be making the same
determination generally on all of its similarly situated customers.



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



“SEC” shall have the meaning specified in Exhibit VI(A).



“Seller” shall mean, individually and collectively, as the context may require, RAIT
CMBS Conduit I, LLC, a Delaware limited liability company, with respect to Fixed Rate Purchased
Loans, and RAIT CRE Conduit III, LLC, a Delaware limited liability company, with respect to
Floating Rate Purchased Loans.



“Senior Interest” shall mean an “A note” in an “A/B structure” in a commercial real
estate loan.



“Servicing Agreement” shall have the meaning specified in Section 29(b).



“Servicing Rights” shall mean Seller’s right, title and interest in and to any and all
of the following: (a) any and all rights to service the related Purchased Loan; (b) any payments
to or monies received by such Seller or any other Person for servicing such Purchased Loan; (c) any
late fees, penalties or similar payments with respect to such Purchased Loan; (d) all agreements or
documents creating, defining or evidencing any such servicing rights to the extent they relate to
such servicing rights and all rights of such Seller or any other Person thereunder; (e) escrow
payments or other similar payments with respect to such Purchased Loan and any amounts actually
collected by such Seller or any other Person with respect thereto; (f) the right, if any, to
appoint a special servicer or liquidator of such Purchased Loan; and (g) all accounts and other
rights to payment related to the servicing of such Purchased Loan.



“Servicing Records” shall have the meaning specified in Section 29(b).



“Significant Purchased Loan Modification” means any written modification or amendment
of a Purchased Loan which




(i) reduces the principal amount of the Purchased Loan in question other than (1) with
respect to a dollar-for-dollar principal payment or (2) reductions of principal to the
extent of deferred, accrued or capitalized interest added to principal which additional
amount was not taken into account by Buyer in determining the related Purchase Price,




(ii) increases the principal amount of a Purchased Loan other than increases which are
derived from accrual or capitalization of deferred interest which is added to principal or
protective advances,




(iii) modifies the amount or timing of any regularly scheduled payments of principal
and non-contingent interest of the Purchased Loan in question,




(iv) changes the frequency of scheduled payments of principal and interest in respect
of a Purchased Loan,




(v) subordinates the lien priority of the Purchased Loan in question or the payment
priority of the Purchased Loan in question other than subordinations required under the then
existing terms and conditions of the Purchased Loan in question (provided, however, the
foregoing shall not preclude the execution and delivery of subordination, nondisturbance and
attornment agreements with tenants, subordination to tenant leases, easements, plats of
subdivision and condominium declarations and similar instruments which in the commercially
reasonable judgment of the Seller do not materially adversely affect the rights and interest
of the holder of the Purchased Loan in question),




(vi) releases any collateral for the Purchased Loan in question other than releases
required under the then existing Purchased Loan documents or releases in connection with
eminent domain or under threat of eminent domain,




(vii) waives, amends or modifies any cash management or reserve account requirements of
the Purchased Loan other than changes required under the then existing Purchased Loan
documentation, or




(viii) waives any due-on-sale or due-on-encumbrance provisions of the Purchased Loan in
question other than waivers required to be given under the then existing Purchased Loan
documents, or




(ix) waives, amends or modifies the underlying insurance requirements of the Purchased
Loan.



“Single-Purpose Entity” shall have the meaning specified in Exhibit VI(A).



“Solvent” shall mean with respect to any Person at any time, having a state of affairs
such that all of the following conditions are met at such time: (a) the fair value of the assets
and property of such Person is greater than the amount of such Person’s liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established and liabilities
evaluated for purposes of Section 101(32) of the Bankruptcy Code, (b) such Person is able to pay
all liabilities of such Person as such liabilities mature, and (c) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a transaction, for which
such Person’s assets and property would constitute unreasonably small capital.



“Special Purpose Entity” shall mean a Person, other than an individual, which is
formed or organized solely for the purpose of holding, directly and subject to this Agreement, the
Purchased Loans, does not engage in any business unrelated to the Purchased Loans and the financing
thereof, does not have any assets other than the Purchased Loans and the financing thereof, or any
indebtedness other than as permitted by this Agreement, has its own separate books and records and
its own accounts, in each case which are separate and apart from the books and records and accounts
of any other Person, and holds itself out as being a Person, separate and apart from any other
Person.



“Sponsor” shall mean RAIT Financial Trust, a Maryland real estate investment trust.



“Standard Qualifications” shall have the meaning specified in Exhibit VI(A).



“Survey” shall mean a certified ALTA/ACSM (or applicable state standards for the state
in which the Collateral is located) survey of a Mortgaged Property prepared by a registered
independent surveyor or engineer and in form and content satisfactory to the Buyer in its
commercially reasonable discretion and the company issuing the Title Policy for such Mortgaged
Property.



“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.



“Terrorism Cap Amount” shall have the meaning specified in Exhibit VI(A).



“Title Policy” shall have the meaning specified in Exhibit VI(A).



“Transaction” shall have the meaning set forth in Section 1 of this Agreement.



“Transaction Conditions Precedent” shall have the meaning specified in Section 3(b) of
this Agreement.



“Transaction Documents” shall mean, collectively, this Agreement, any applicable
Annexes to this Agreement, the Guaranty, the Custodial Agreement, the Blocked Account Agreement,
the ISDA Master Agreement and all Confirmations executed pursuant to this Agreement in connection
with specific Transactions, any other documents or instruments relating to any such documents
executed by Seller or Sponsor, and any written modifications, extensions, renewals, restatements,
or replacements of any of the foregoing.



“Transaction Request” shall mean a request to enter into a Transaction, in the form of
Exhibit VIII attached hereto.



“TRIA” shall have the meaning specified in Exhibit VI(A).



“Trust Receipt” shall mean a trust receipt issued by Custodian to Buyer confirming the
Custodian’s possession of certain Purchased Loan Files which are the property of and held by
Custodian for the benefit of the Buyer (or any other holder of such trust receipt) or a bailment
arrangement with an Acceptable Attorney.



“UCC” shall have the meaning specified in Section 6 of this Agreement.



“U.S. Person” shall mean a “United States person” as defined in Section 7701(a)(30) of
the Code.



“Whole Loans” shall mean a whole mortgage loan (i.e. not a participation interest).



“Zoning Regulations” shall have the meaning specified in Exhibit VI(A).




3. INITIATION; CONFIRMATION; TERMINATION; FEES



(a) Subject to the terms and conditions set forth in this Agreement (including, without
limitation, the “Transaction Conditions Precedent” specified in Section 3(b) of this Agreement), an
agreement to enter into a Transaction shall be made in writing at the initiation of Seller as
provided below; provided, however, that (i) the aggregate outstanding Purchase
Price at any time for all Transactions shall not exceed the Facility Amount, (ii) Buyer shall not
have any obligation to enter into Transactions with Seller after the occurrence and during the
continuance of a Default or an Event of Default or during the thirty (30) day period immediately
prior to the Facility Expiration Date, and (iii) this Agreement is not a commitment to enter into
Transactions but rather sets forth the procedures to be used in connection with periodic requests
to enter into Transactions and Seller hereby acknowledges that Buyer is under no obligation to
agree to enter into, or to enter into, any Transaction pursuant to this Agreement. Seller may,
from time to time, submit to Buyer a Transaction Request, in the form of Exhibit VIII attached
hereto, for Buyer’s review and approval in order to enter into a Transaction with respect to any
Eligible Loan that Seller proposes to be included as Collateral under this Agreement. Upon Buyer’s
receipt of a complete Due Diligence Package, Buyer shall have the right to request, in Buyer’s good
faith business judgment, additional diligence materials and deliveries with respect to the
applicable Eligible Loan, to the extent necessary for the Buyer’s underwriting of such Eligible
Loan. Upon Buyer’s receipt of the Transaction Request and diligence materials, Buyer shall use
commercially reasonable efforts to within ten (10) Business Days and following receipt of internal
credit approval, either (i) notify Seller of the Purchase Price and the Market Value for the
Eligible Loan or (ii) deny Seller’s request for a Transaction. Buyer’s failure to respond to
Seller within ten (10) Business Days, as applicable, shall be deemed to be a denial of Seller’s
request for a Transaction, unless Buyer and Seller have agreed otherwise in writing. Buyer shall
have the right to review all Eligible Loans proposed to be sold to Buyer in any Transaction and to
conduct its own due diligence investigation of such Eligible Loans as Buyer reasonably determines.
Buyer shall be entitled to make a determination, in its sole discretion, that it shall or shall not
purchase any or all of the Eligible Loans proposed to be sold to Buyer by Seller. On the Purchase
Date for the Transaction which shall be on a date mutually agreed upon by Buyer and Seller
following the approval of an Eligible Loan by Buyer, the Purchased Loan shall be transferred to
Buyer against the transfer of the Purchase Price to an account of Seller.



(b) Upon agreeing to enter into a Transaction hereunder, provided each of the Transaction
Conditions Precedent shall have been satisfied (or waived by Buyer), Buyer shall promptly deliver
to Seller a written confirmation in the form of Exhibit I attached hereto of each Transaction (a
“Confirmation”). Such Confirmation shall describe the Purchased Loans, shall identify
Buyer and Seller, and shall set forth:




	 	(i)	 	the Purchase Date,





	 	 	 
	(ii)

(iii)

(iv)

	 	the Purchase Price for such Purchased Loan,

the Repurchase Date,

the Pricing Rate, and







	 	(v)	 	any additional terms or conditions not inconsistent with this
Agreement.





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 each Reset Date for the next succeeding Pricing Rate Period 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 and notify Seller of
such rate for such period on the Reset Date. For purposes of this Section 3(b), the “Transaction
Conditions Precedent” shall be deemed to have been satisfied with respect to any proposed
Transaction if:




	 	(A)	 	no Default or Event of Default under this
Agreement shall have occurred and be continuing as of the Purchase Date
for such proposed Transaction;






	 	(B)	 	the representations and warranties made by
Seller in any of the Transaction Documents shall be true and correct in
all material respects as of the Purchase Date for such Transaction
(except to the extent such representations and warranties are made as
of a particular date);






	 	(C)	 	Buyer shall have received from Seller all
corporate and governmental approvals, legal opinions and closing
documentation as Buyer may reasonably request,






	 	(D)	 	Seller shall have paid all of Buyer’s
out-of-pocket costs and expenses pursuant to Section 30(d) of this
Agreement; and






	 	(E)	 	Buyer shall have (A) determined, in accordance
with the applicable provisions of Section 3(a) of this Agreement, that
the Assets proposed to be sold to Buyer by Seller in such Transaction
are Eligible Loans and (B) obtained internal credit approval for the
inclusion of such Eligible Loan as a Purchased Loan in a Transaction.





(c) Each Confirmation, together with this Agreement, shall be conclusive evidence of the terms
of the Transaction(s) covered thereby unless specific objection is made no less than three (3)
Business Days after the date thereof. In the event of any conflict between the terms of such
Confirmation and the terms of this Agreement, the Confirmation shall prevail. An objection sent by
Seller with respect to any Confirmation must state specifically that the writing is an objection,
must specify the provision(s) of such Confirmation being objected to by Seller, must set forth such
provision(s) in the manner that Seller believes such provisions should be stated, and must be sent
by Seller no more than five (5) Business Days after such Confirmation is received by Seller.



(d) No Transaction shall be terminable on demand by Buyer (other than upon the occurrence and
during the continuance of an Event of Default). Seller shall be entitled to terminate a
Transaction on demand, in whole only, and repurchase the Purchased Loan 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 Loan no later than three (3)
Business Days prior to such Early Repurchase Date,






	 	(ii)	 	on such Early Repurchase Date Seller pays to Buyer an amount
equal to the sum of (A) the Repurchase Price for such Transaction, (B) the
amount, if any, payable by Seller in the event any Hedging Transaction related
to such Purchased Loan is being terminated as of such date, (C) the Early
Repurchase Fee, if any, then due and payable with respect to such Transaction
pursuant to the Fee Agreement, and (D) and any other amounts payable under this
Agreement (including, without limitation, Section 3(i) of this Agreement) with
respect to such Transaction against transfer to the Seller or its agent of such
Purchased Loan,






	 	(iii)	 	on such Early Repurchase Date, following the payment of the
amounts set forth in subclause (ii) above, no Margin Deficit exists.





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



(e) On the Repurchase Date, termination of the applicable Transaction will be effected by
transfer to Seller or its agent of the applicable Purchased Loan 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 Section 5 of this Agreement) against the simultaneous transfer to an account of
Buyer of the Repurchase Price, the amount, if any, payable by Seller in the event any Hedging
Transaction related to such Purchased Loan is being terminated as of such date and any other
amounts payable under this Agreement with respect to such Transaction.



(f) On any Remittance Date before the Repurchase Date, Seller shall have the right, from time
to time, to transfer cash to Buyer for the purpose of reducing the Purchase Price of, but not
terminating, a Transaction and without the release of any Collateral and without any prepayment fee
or penalty.



(g) If prior to the first day of any Pricing Rate Period with respect to any Transaction,
Buyer shall have determined in the exercise of its reasonable business judgment (which
determination (with respect to subparagraph (i) only) shall be conclusive and binding upon Seller)
that, (i) 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 (with written
notice to follow the next Business Day) thereof to Seller as soon as practicable thereafter. If
such notice is given, and provided Buyer shall be making the same determination generally on all of
its similarly situated customers, the Pricing Rate with respect to such Transaction for such
Pricing Rate Period, and for any subsequent Pricing Rate Periods until (1) the LIBO Rate is
ascertainable for subsequent pricing periods (as determined by Buyer in the exercise of its
reasonable business judgment) or (2) the LIBO Rate adequately and fairly reflects the cost to Buyer
of making or maintaining Transactions during such Pricing Rate Period, as applicable, shall be a
per annum rate equal to the Federal Funds Rate plus 25 basis points (0.25%) plus the Applicable
Spread (the “Alternative Rate”).



(h) 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 effect Transactions as contemplated by the Transaction Documents, (a) the commitment of Buyer
hereunder to enter into new Transactions 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. If
any such conversion of a Transaction occurs on a day which is not the last day of the then current
Pricing Rate Period with respect to such Transaction, Seller shall pay to Buyer such amounts, if
any, as may be required pursuant to Section 3(i) of this Agreement.



(i) Upon written demand by Buyer, Seller shall indemnify Buyer and hold Buyer harmless from
any net actual, out-of-pocket loss or expense (not to include any lost profit or opportunity)
(including, without limitation, reasonable actual attorneys’ fees and disbursements) which Buyer
sustains or incurs as a consequence of (i) default by the Seller in terminating any Transaction
after the Seller has given a notice in accordance with Section 3(d) hereof of a termination of a
Transaction, (ii) any payment of the Repurchase Price on any day other than a Remittance Date or
the Repurchase Date (including, without limitation, any such actual, out-of-pocket loss or expense
arising from the reemployment of funds obtained by Buyer to maintain Transactions hereunder or from
customary and reasonable fees payable to terminate the deposits from which such funds were
obtained) or (iii) a default by Seller in selling Eligible Loans after Seller has notified Buyer of
a proposed Transaction and Buyer has agreed to purchase such Eligible Loans in accordance with the
provisions of this Agreement. A certificate as to such actual costs, losses, damages and expenses,
setting forth the calculations therefor shall be submitted promptly by Buyer to Seller.



(j) 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 with any request or
directive 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 Loan or any Transaction, or
change the basis of taxation of payments to Buyer in respect thereof (except
for (i) Indemnified Taxes (with Other Taxes applying for this purpose without
the proviso in the definition thereof), (ii) Taxes described in clauses (b)
through (g) of the definition of Excluded Taxes and (iii) Connection Income
Taxes); or






	 	(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 which is not otherwise included in the determination of the LIBO Rate
hereunder;





and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer
deems, in the exercise of its reasonable business judgment, to be material, of entering into,
continuing or maintaining Transactions or to reduce in a material manner any amount receivable
under the Transaction Documents in respect thereof; then, in any such case and provided Buyer
imposes such additional costs generally on all of its similarly situated customers, Seller shall
promptly pay Buyer 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 Section 3(j), it shall notify Seller in writing 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. This covenant shall survive the termination
of this Agreement and the repurchase by Seller of any or all of the Purchased Loans.



(k) 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 has 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, and provided Buyer imposes such
additional costs generally on all of its similarly situated customers, 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. This covenant shall survive the termination of this Agreement and
the repurchase by Seller of any or all of the Purchased Loans.




4. MARGIN MAINTENANCE



(a) If at any time, the aggregate Market Value of the Purchased Loans shall be less than the
product of (x) 98.00% and (y) the sum of the Margin Amounts calculated individually with respect to
each Purchased Loan (a “Margin Deficit”), then Buyer may by notice to Seller in writing
(including therein a description of the Market Value calculation for each Purchased Loan) require
Seller to cure such Margin Deficit by either (i) transferring to Buyer additional cash collateral
in an amount equal to the sum of (a) the difference between the Margin Amount calculated
individually with respect to each Purchased Loan and the Market Value of such Purchased Loan
multiplied by (b) the applicable Purchase Percentage for such Purchased Loan (based upon the
outstanding Purchase Price for such Purchased Loan as of the applicable date), (ii) reducing the
outstanding Purchase Price of the Purchased Loans such that the aggregate Market Value of the
Purchased Loans is equal to the sum of the Margin Amounts or (iii) doing an early repurchase on an
Early Repurchase Date pursuant to Section 3(d) of this Agreement in order to cure such Margin
Deficit. Any cash transferred to Buyer pursuant to clause (ii) of Section 4(a) of this Agreement
with respect to any Purchased Loan shall be applied to reduce the Purchase Price for each Purchased
Loan on a dollar-for-dollar basis for which there was a Margin Deficit.



(b) If any notice is given by Buyer under Section 4(a) of this Agreement on any Business Day,
the Seller shall transfer cash or additional collateral as provided in Section 4(a) by no later
than the close of business on the second Business Day following the Business Day on which such
notice is given. The failure of Buyer, on any one or more occasions, to exercise its rights under
Section 4(a) of this Agreement 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. Buyer and Seller agree
that any failure or delay by Buyer to exercise its rights under Section 4(a) of this Agreement
shall not limit such party’s rights under this Agreement or otherwise existing by law or in any way
create additional rights for such party.



(c) If on any date no Margin Deficit or Default or Event of Default exists and the Market
Value for any particular Purchased Loan exceeds the Margin Amount for such Purchased Loan as of
such date, then Buyer, in response to Seller’s written request, to be delivered no more frequently
than once each calendar month with respect to any Purchased Loan, shall transfer cash to Seller in
an amount up to such excess multiplied by the Purchase Percentage (such amount, the “Margin
Excess”); provided, that, Buyer shall not have any obligation to transfer cash to
Seller with respect to any individual Purchased Loan in an amount greater than the amount of cash
transferred by Seller to Buyer pursuant to Section 4(a) of this Agreement in reduction of the
Purchase Price of such Purchased Loan.



(d) If any notice is given by Seller under Section 4(c) of this Agreement on any Business Day,
the Buyer shall transfer cash as provided in Section 4(c) by no later than the close of business on
the second Business Day following the Business Day on which such notice is given. The failure of
Seller, on any one or more occasions, to exercise its rights under Section 4(c) of this Agreement
shall not change or alter the terms and conditions to which this Agreement is subject or limit the
right of Seller to do so at a later date. Buyer and Seller agree that any failure or delay by
Seller to exercise its rights under Section 4(c) of this Agreement shall not limit such party’s
rights under this Agreement or otherwise existing by law or in any way create additional rights for
such party.




5. INCOME PAYMENTS AND PRINCIPAL PAYMENTS



(a) The Cash Management Account shall be established at the Depository prior to or
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. All Income in respect of the
Purchased Loans and any payments 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 Sections 5(d), 5(e), 5(f) and 14(b)(iii) of this Agreement.



(b) With respect to each Purchased Loan, Seller shall deliver to each Mortgagor, issuer of a
participation or borrower under a Purchased Loan an irrevocable direction letter (the
“Irrevocable Direction Letter”) in the form attached as Exhibit IX to this Agreement
instructing the Mortgagor, issuer of a participation or borrower to pay all amounts payable under
the related Purchased Loan to the Cash Management Account and shall provide to Buyer proof of such
delivery. If a Mortgagor, issuer of a participation or borrower forwards any Income with respect
to a Purchased Loan to Seller rather than directly to the Cash Management Account, Seller shall (i)
deliver an additional Irrevocable Direction Letter to the applicable Mortgagor, issuer of a
participation or borrower and make other commercially reasonable efforts to cause such Mortgagor,
issuer of a participation or borrower to forward such amounts directly to the Cash Management
Account and (ii) deposit in the Cash Management Account any such amounts within two (2) Business
Days of Seller’s receipt thereof.



(c) On each Remittance Date, Seller shall pay to Buyer an amount equal to the Price
Differential which has accrued during the related Pricing Rate Period for the related Transaction
to the extent not previously paid to Buyer.



(d) So long as no Event of Default shall have occurred and be continuing, all Income received
by the Depository in respect of the Purchased Loans and the associated Hedging Transactions (other
than Principal Payments in full (whether scheduled or unscheduled) and net sale proceeds) and any
deposits to reserve accounts made pursuant to the terms of the Purchased Loan Documents during each
Collection Period shall be remitted by the Depository on the next Business Day to the account of
Seller specified in the Confirmation.



(e) So long as no Event of Default shall have occurred and be continuing, all Principal
Payments in full in respect of each Purchased Loan (whether scheduled or unscheduled) received by
the Depository during each Collection Period shall be paid to Buyer on the next Remittance Date
first in the amount necessary to reduce the Purchase Price of such Purchased Loan to zero and then
to the extent necessary to cause the Purchase Price with respect to each other Purchased Loan to
equal the product of the related Market Value and the applicable Purchase Percentage. Any
Principal Payments not paid to Buyer pursuant to the preceding sentence on each Remittance Date
shall be remitted to Seller.



(f) If an Event of Default shall have occurred and be continuing, all Income received by the
Depository in respect of the Purchased Loans 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 as follows:




	 	(i)	 	first, to the Depository and Custodian an amount equal to the
depository and custodial fees due and payable;






	 	(ii)	 	second, to Buyer an amount equal to its out-of-pocket costs and
expenses and any other amounts due and payable under this Agreement;






	 	(iii)	 	third, to Buyer an amount equal to the Price Differential
which has accrued and is outstanding in respect of all of the Purchased Loans
as of such Business Day;






	 	(iv)	 	fourth, to make a payment to Buyer in reduction of the
Repurchase Price of the Purchased Loans, such payment to be allocated amongst
the Purchased Loans as determined by Buyer in its sole discretion, until the
Repurchase Price for all of the Purchased Loans has been reduced to zero;






	 	(v)	 	fifth, to pay, the amount, if any, payable by Seller in the
event any Hedging Transaction related to such Purchased Loan is being
terminated as of such date; and






	 	(vi)	 	sixth, the surplus, if any, to whoever may be lawfully entitled
to receive such surplus.






6. SECURITY INTEREST



The Buyer and Seller intend that all Transactions hereunder be sales to the Buyer of the
Purchased Loans and not loans from the Buyer to Seller secured by the Purchased Loans. However,
in the event any such Transaction is deemed to be a loan, Seller hereby pledges all of its right,
title, and interest in, to and under and grants a first priority lien on, and security interest in,
all of the following property, whether now owned or hereafter acquired, now existing or hereafter
created and wherever located (collectively, the “Collateral”) to the Buyer to secure the
payment and performance of all other amounts or obligations owing to the Buyer pursuant to this
Agreement, the ISDA Master Agreement and the related documents described herein, subject to the
terms of this Agreement:



(a) the Purchased Loans, the Servicing Rights, Servicing Agreements, Servicing Records,
insurance relating to the Purchased Loans, and collection and escrow accounts relating to the
Purchased Loans;



(b) the Hedging Transactions entered into pursuant to this Agreement;



(c) the Cash Management Account and all financial assets (including, without limitation, all
security entitlements with respect to all financial assets) from time to time on deposit in the
Cash Management Account;



(d) all “general intangibles”, “accounts” and “chattel paper” as defined in the UCC relating
to or constituting any and all of the foregoing; and



(e) 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.



The Buyer’s security interest in the Collateral shall terminate only upon termination of the
Seller’s obligations under this Agreement 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 to return the Purchased Loans to
Seller. For purposes of the grant of the security interest pursuant to this Section 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 reasonably 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) while Buyer owns the Purchased Loans, Seller shall from time to time
take such further actions as may be reasonably 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).




7. PAYMENT, TRANSFER AND CUSTODY



(a) On the Purchase Date for each Transaction, ownership of the Purchased Loans 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 III; provided, that
notwithstanding the foregoing, upon request of Seller, Buyer in its commercially reasonable
discretion may elect to permit the Seller to make such delivery by not later than the third
(3rd) Business Day after the related Purchase Date, so long as the Seller causes an
Acceptable Attorney to deliver to the Buyer and the Custodian an Attorney’s Bailee Letter on or
prior to such Purchase Date. In connection with each sale, transfer, conveyance and assignment of
a Purchased Loan, on or prior to the Purchase Date with respect to such Purchased Loan, the Seller
shall deliver or cause to be delivered and released the following documents (collectively, the
“Purchased Loan File”) pertaining to such Purchased Loan to the Custodian on or prior to
the Purchase Date with respect to such Purchased Loan (or, pursuant to the proviso in the
immediately preceding sentence, by not later than the third (3rd) Business Day after the
related Purchase Date):



With respect to each Purchased Loan that is a Whole Loan, to the extent applicable:




	 	(i)	 	The original Mortgage Note (or senior Mortgage Note in an “A/B”
structure) bearing all intervening endorsements.






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






	 	(iii)	 	An original or copy of the Mortgage with evidence of
recordation, or submission for recordation, from the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is located.






	 	(iv)	 	Originals or copies of all assumption, modification,
consolidation or extension agreements with evidence of recordation, or
submission for recordation, from the appropriate governmental recording office
of the jurisdiction where the Mortgaged Property is located.






	 	(v)	 	An original of the Assignment Documents in Blank.






	 	(vi)	 	Originals or copies of all intervening assignments of mortgage
with evidence of recordation, or submission for recordation, from the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located.






	 	(vii)	 	An original or copy of the 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 (or irrevocable signed proforma policy).






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






	 	(ix)	 	An original or copy of the assignment of leases and rents, if
any, with evidence of recordation, or submission for recordation, from the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located.






	 	(x)	 	Originals or copies of all intervening assignments of
assignment of leases and rents, if any, or copies thereof, with evidence of
recordation, or submission for recordation, from the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is located.






	 	(xi)	 	A copy of the UCC financing statements and all necessary UCC
continuation statements with evidence of filing or submission for filing
thereon, and UCC assignments prepared by Seller in blank, which UCC assignments
shall be in form and substance acceptable for filing.






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






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






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






	 	(xv)	 	A survey of the Mortgaged Property (if any) as accepted by the
title company for issuance of the Title Policy.






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






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





With respect to each Purchased Loan which is a Senior Interest in a Whole Loan:




	 	(i)	 	the original or a copy of all of the documents described above
with respect to a Purchased Loan which is a Whole Loan;






	 	(ii)	 	the original senior Mortgage Note bearing all intervening
endorsements, together with an original of the Assignment Documents in Blank,
to the extent applicable; and






	 	(iii)	 	an original or copy of any intercreditor agreement, co–lender
agreement and/or servicing agreement executed in connection with the Purchased
Loan.





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 Loan 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 which 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
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 Loans 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 the Assignment of Mortgage, (ii) complete the endorsement of the Mortgage Note
and (iii) after the occurrence and during the continuance of an Event of Default, take such other
steps as may be reasonably necessary or desirable to enforce Buyer’s rights against such Purchased
Loans and the related Purchased Loan Files and the Servicing Records. Buyer shall deposit the
Purchased Loan Files representing the Purchased Loans, or direct that the Purchased Loan Files be
deposited directly, with the Custodian. The Purchased Loan Files shall be maintained in accordance
with the Custodial Agreement. Any Purchased Loan 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 Loan
File and the originals of the Purchased Loan File not delivered to Buyer or its designee. The
possession of the Purchased Loan File by Seller or its designee is at the will of the Buyer for the
sole purpose of servicing the related Purchased Loan, and such retention and possession by the
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 Loan to Buyer. Seller or its designee
(including the Custodian) shall release its custody of the Purchased Loan File only in accordance
with written instructions from Buyer, unless such release is required as incidental to the
servicing of the Purchased Loans, is in connection with a repurchase of any Purchased Loan by
Seller or as otherwise required by law.



(c) Unless an Event of Default shall have occurred and be continuing, Buyer shall exercise all
voting and corporate rights with respect to the Purchased Loans in accordance with Seller’s written
instructions; provided, however, that Buyer shall not be required to follow
Seller’s instructions concerning any vote or corporate right if doing so would, in Buyer’s good
faith business judgment, be inconsistent with or result in any violation of any provision of the
Transaction Documents or any Requirement of Law. 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 Loans without regard to Seller’s instructions.




8. SALE, TRANSFER, HYPOTHECATION OR PLEDGE OF PURCHASED LOANS



(a) Title to all Purchased Loans shall pass to Buyer on the applicable Purchase Date, and
Buyer shall have free and unrestricted use of all Purchased Loans, 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 Loans or otherwise selling,
transferring, pledging, repledging, hypothecating, or rehypothecating the Purchased Loans, but no
such transaction shall relieve Buyer of its obligations to transfer the Purchased Loans to Seller
pursuant to Section 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 Section 5 hereof.



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




9. [INTENTIONALLY OMITTED]




10. REPRESENTATIONS



(a) Each of Buyer and Seller represents and warrants 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.



(b) In addition to the representations and warranties in subsection (a) above, Seller
represents and warrants to Buyer that as of the Purchase Date for the purchase of any Purchased
Loans by Buyer from Seller and any Transaction thereunder and as of the date of this Agreement and
at all times while this Agreement and any Transaction thereunder is in full force and effect:




	 	(i)	 	Organization. Seller is duly formed, validly existing
and in good standing under the laws and regulations of the state of Seller’s
formation 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. 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)	 	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
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. Seller has all necessary licenses, permits and other consents from
Governmental Authorities necessary to acquire, own and sell the Purchased Loans
and for the performance of its obligations under the Transaction Documents.






	 	(iv)	 	Litigation; Requirements of Law. Except as disclosed
in writing to Buyer, there is no action, suit, proceeding, investigation, or
arbitration pending or, to the best knowledge of Seller, threatened against
Seller, the Sponsor or any of their respective assets, nor is there any action,
suit, proceeding, investigation, or arbitration pending or, to the best
knowledge of Seller, threatened against the Sponsor which may result in any
material adverse change in the business, operations, financial condition,
properties, or assets of Seller or the Sponsor, or which may have a material
adverse effect on the validity of the Transaction Documents or the Purchased
Loans or any action taken or to be taken in connection with the obligations of
Seller under any of the Transaction Documents. Seller is in compliance in all
material respects with all Requirements of Law. Neither Seller nor the Sponsor
is in default in any material respect with respect to any judgment, order,
writ, injunction, decree, rule or regulation of any arbitrator or Governmental
Authority.






	 	(v)	 	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 Loans pursuant to any of the Transaction Documents.






	 	(vi)	 	Good Title to Purchased Loans. Immediately prior to
the purchase of any Purchased Loans by Buyer from Seller, such Purchased Loans
are free and clear of any lien, encumbrance or impediment to transfer
(including any “adverse claim” as defined in Section 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 Loans to Buyer and,
upon transfer of such Purchased Loans to Buyer, Buyer shall be the owner of
such Purchased Loans free of any adverse claim, subject to the rights of Seller
pursuant to the terms of this Agreement. In the event the related Transaction
is recharacterized as a secured financing of the Purchased Loans, 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 the Seller in, to
and under the Collateral and the Buyer shall have a valid, perfected first
priority security interest in the Purchased Loans.






	 	(vii)	 	No Default. No Default or Event of Default exists
under or with respect to the Transaction Documents.






	 	(viii)	 	Representations and Warranties Regarding Purchased Loans; Delivery of
Purchased Loan File. Seller represents and warrants to the Buyer that each
Purchased Loan sold hereunder and each pool of Purchased Loans sold in a
Transaction hereunder, as of each Purchase Date for a Transaction conform to
the applicable representations and warranties set forth in Exhibit VI(A) and
Exhibit VI(B) attached hereto in all material respects, except as disclosed to
the Buyer in writing. With respect to each Purchased Loan, the Mortgage Note,
the Mortgage, the Assignment of Mortgage and any other documents required to be
delivered under this Agreement and the Custodial Agreement for such Purchased
Loan have been delivered to Buyer or the Custodian on its behalf (or shall be
delivered in accordance with the time periods set forth herein).






	 	(ix)	 	Adequate Capitalization; No Fraudulent Transfer.
Seller has adequate capital for the normal obligations reasonably 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 is Solvent. Seller does
not intend to, and does not believe that it will, incur debts beyond its
ability to pay such debts as they mature, taking into account the timing of and
amounts of cash anticipated to be received by it and the timing of the amounts
of cash anticipated to be payable on or in respect of its debt. 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.






	 	(x)	 	Consents. No consent, approval or other action of, or
filing by Seller with, any Governmental Authority or any other Person is
required to authorize, or is otherwise required in connection with, the
execution, delivery and performance of any of the Transaction Documents (other
than consents, approvals and filings that have been obtained or made, as
applicable).






	 	(xi)	 	Members. Original Seller does not have any members
other than RAIT Funding, LLC and New Seller does not have any members other
than RAIT Partnership, L.P.






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






	 	(xiii)	 	No Encumbrances. Except to the extent expressly set forth in this
Agreement, 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 Loans, (ii) no agreements on the part of the Seller to issue, sell or
distribute the Purchased Loans, and (iii) no obligations on the part of the
Seller (contingent or otherwise) to purchase, redeem or otherwise acquire any
securities or any interest therein or to pay any dividend or make any
distribution in respect of the Purchased Loans.






	 	(xiv)	 	Federal Regulations. Seller is not (A) 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,
or (B) 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.






	 	(xv)	 	Taxes. Seller has filed or caused to be filed all tax
returns which 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 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; no tax liens have been
filed against any of Seller’s assets and, to Seller’s knowledge, no claims are
being asserted with respect to any such taxes, fees or other charges.






	 	(xvi)	 	ERISA. Neither Seller nor any ERISA Affiliate
maintains any Plans and neither Seller nor any ERISA Affiliate makes any
contributions to any Plans or any Multiemployer Plans.






	 	(xvii)	 	Judgments/Bankruptcy. Except as disclosed in writing to Buyer, there
are no judgments against Seller or the Sponsor unsatisfied of record or
docketed in any court located in the United States of America. No Act of
Insolvency has ever occurred with respect to Seller or the Sponsor.






	 	(xviii)	 	Full and Accurate Disclosure. No information contained in the
Transaction Documents, or any written statement furnished by 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.






	 	(xix)	 	Financial Information. All financial data concerning
Seller that has been delivered by or on behalf of Seller to Buyer is true,
complete and correct in all material respects and has been prepared in
accordance with GAAP. To the actual knowledge of Seller, all financial data
concerning the Purchased Loans that has been delivered by or on behalf of
Seller to Buyer is true, complete and correct in all material respects. 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 in the
operations of the Seller or, to the actual knowledge of Seller, the financial
position of the Purchased Loans, which change is reasonably likely to have in a
Material Adverse Effect on Seller.






	 	(xx)	 	Notice Address; Jurisdiction of Organization. On the
date of this Agreement, the Seller’s address for notices is located at c/o RAIT
Financial Trust, 450 Park Avenue, New York, New York, 10022. Seller’s
jurisdiction of organization is Delaware. The location where the Seller keeps
its books and records, including all computer tapes and records relating to the
Collateral, is its notice address.






	 	(xxi)	 	Prohibited Person. None of the funds or other assets
of Seller or Sponsor constitute property of, or are beneficially owned,
directly or indirectly, by a Prohibited Person with the result that the
investment in Seller or Sponsor, as applicable (whether directly or
indirectly), is prohibited by law or the entering into this Agreement by Buyer
is in violation of law; (b) no Prohibited Person has any interest of any nature
whatsoever in Seller or Sponsor, as applicable, with the result that the
investment in Seller or Sponsor, as applicable (whether directly or
indirectly), is prohibited by law or the entering into this Agreement is in
violation of law; (c) none of the funds of Seller or Sponsor, as applicable,
have been derived from any unlawful activity with the result that the
investment in Seller or Sponsor, as applicable (whether directly or
indirectly), is prohibited by law or the entering into this Agreement is in
violation of law; (d) to the actual knowledge of Seller, none of Seller or
Sponsor or any of their Affiliates has conducted or will conduct any business
or has engaged or will engage in any transaction dealing with any Prohibited
Person in violation of applicable laws; and (e) none of Seller or Sponsor is a
Prohibited Person. The foregoing representation is made to Seller’s knowledge
with respect to the members (and its direct and indirect owners) of Seller and
Sponsor not controlled by Sponsor.






11. NEGATIVE COVENANTS OF SELLER



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



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



(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 Loans (or any of
them) to any Person other than Buyer, or engage in repurchase transactions or similar transactions
with respect to the Purchased Loans (or any of them) with any Person other than Buyer, unless and
until such Purchased Loans are repurchased by Seller in accordance with this Agreement;



(c) create, incur or permit to exist any lien, encumbrance or security interest in or on the
Purchased Loans, except as described in Section 6 of this Agreement;



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



(e) modify or terminate any of the organizational documents of Seller (except Buyer shall not
unreasonably withhold or delay any request for a consent to such modification to the organizational
documents (excluding the special purpose entity provisions));



(f) consent or assent to any amendment or supplement to, or termination of any note, loan
agreement, mortgage or guaranty relating to the Purchased Loans or other material agreement or
instrument relating to the Purchased Loans (other than Permitted Purchased Loan Modifications),
unless and until such Purchased Loans are repurchased by Seller in accordance with this Agreement;



(g) admit any additional members in Seller, or permit the sole member of Seller to assign or
transfer all or any portion of its membership interest in Seller;



(h) after the occurrence and during the continuation of an Event of Default, make any
distribution, payment on account of, or set apart assets for, a sinking or other analogous fund for
the purchase, redemption, defeasance, retirement or other acquisition of any Capital Stock of
Seller, whether now or hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of Seller.




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
Section 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 Section 10, which requests, so long
as an Event of Default has not occurred and is not continuing, shall not be made more frequently
than once every thirty (30) days.



(c) Seller (1) shall defend the right, title and interest of the Buyer in and to the
Collateral 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 Loans 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) With respect to each Purchased Loan, Seller shall enter into Hedging Transactions pursuant
to a hedging strategy acceptable to Buyer in Buyer’s commercially reasonable discretion and pledge
such Hedging Transactions to Buyer as Collateral (including, without limitation, to the extent such
Hedging Transactions are entered into with a party other than Buyer, delivering a collateral
assignment of such Hedging Transactions in form and substance acceptable to Buyer). Seller
acknowledges Buyer will mark to market such Hedging Transactions from time to time in accordance
with and subject to the terms of this Agreement.



(f) Seller shall promptly (and in any event not later than three (3) Business Days following
receipt) deliver to Buyer (i) any written notice of the occurrence of an event of default received
by Seller pursuant to the Purchased Loan Documents and (ii) any other information with respect to
the Purchased Loans as may be reasonably 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 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, and if no such
confidentiality agreement then exists between Buyer and Seller, Buyer and Seller shall act in
accordance with customary market standards regarding confidentiality. 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) 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 reasonably 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 reasonably request). If any amount payable under
or in connection with any of the Collateral 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 the Buyer, duly endorsed in a manner reasonably satisfactory to the Buyer, to be held
as Collateral pursuant to this Agreement, and the documents delivered in connection herewith.



(i) Seller shall provide Buyer with the following financial and reporting information:




	 	(i)	 	Within 60 days after the last day of each of the first three
fiscal quarters in any fiscal year, Sponsor’s and Seller’s unaudited
consolidated balance sheets as of the end of such quarter, in each case
certified as being true and correct by an officer’s certificate;






	 	(ii)	 	Within 120 days after the last day of its fiscal year,
Sponsor’s audited and Seller’s unaudited (or, if generated by Seller, Seller’s
audited) consolidated statements of income and statements of changes in cash
flow for such year and balance sheets as of the end of such year, in each case
presented fairly in accordance with GAAP, and accompanied, in the case of
Sponsor, by an unqualified report of a nationally recognized independent
certified public accounting firm, Grant Thornton LLP or any other accounting
firm consented to by Buyer in its reasonable discretion;






	 	(iii)	 	Within 30 days after the last day of each calendar month, any
and all property level financial information with respect to the Purchased
Loans that was received during the preceding calendar month and is in the
possession of the Seller or an Affiliate, including, without limitation, rent
rolls and income statements; and






	 	(iv)	 	Within 30 days after the last day of each calendar quarter in
any fiscal year, an officer’s certificate from the Seller addressed to Buyer
certifying that, as of such calendar month, (x) Seller and Sponsor are in
compliance in all material respects with all of the terms and requirements of
this Agreement, (y) Sponsor is in compliance with the financial covenants set
forth in the Guaranty (including therein detailed calculations demonstrating
such compliance) and (z) no Event of Default exists.





(j) 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 reasonably necessary
to preserve and maintain in full force and effect its legal existence, and all licenses material to
its business.



(k) 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 in accordance with GAAP and set aside on its
books from its earnings for each fiscal year all such proper reserves in accordance with GAAP.



(l) Seller shall observe, perform and satisfy all the terms, provisions and covenants 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, except for any such taxes as are
being appropriately contested in good faith by appropriate proceedings diligently conducted and
with respect to which adequate reserves have been provided, in all material respects, in accordance
with GAAP.



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



(n) Seller shall provide Buyer with reasonable access to operating statements, the occupancy
status and other property level information, with respect to the Mortgaged Properties, plus any
such additional reports (in each case, to the extent in Seller’s possession) as Buyer may
reasonably request.




13. SINGLE-PURPOSE ENTITY



Seller hereby represents and warrants to Buyer, and covenants with Buyer, that as of the date
hereof and so long as any of the Transaction Documents shall remain in effect:



(a) It is and intends to remain Solvent and it has paid and will pay its debts and liabilities
(including employment and overhead expenses) from its own assets as the same shall become due.



(b) It has complied and will comply with the provisions of its organizational documents.



(c) It has done or caused to be done and will, to the extent under its control, do all things
necessary to observe corporate formalities and to preserve its existence.



(d) It has maintained and will maintain all of its books, records, financial statements and
bank accounts separate from those of its Affiliates, its members and any other Person, and it will
file its own tax returns, if any, which are required by law (except to the extent consolidation is
required under GAAP or as a matter of law).



(e) It has been, is and will be, and at all times will hold itself out to the public as, a
legal entity separate and distinct from any other entity (including any Affiliate), shall correct
any known misunderstanding regarding its status as a separate entity, shall conduct business in its
own name, shall not identify itself or any of its Affiliates as a division or part of the other,
shall maintain and utilize separate stationery, invoices and checks, and allocate fairly and
reasonably any overhead for shared office space and for services performed by an employee of an
Affiliate.



(f) It has not owned and will not own any property or any other assets other than Purchased
Loans, cash and its interest under any associated Hedging Transactions.



(g) It has not engaged and will not engage in any business other than the acquisition,
origination, ownership, financing and disposition of Purchased Loans in accordance with the
applicable provisions of the Transaction Documents.



(h) It has not entered into, and will not enter into, any contract or agreement with any of
its Affiliates, except upon terms and conditions that are substantially similar to those that would
be available on an arm’s-length basis with Persons other than such Affiliate.



(i) It has not incurred and will not incur any indebtedness or obligation, secured or
unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation),
other than (A) obligations under the Transaction Documents and (B) unsecured trade payables, in an
aggregate amount not to exceed $200,000 at any one time outstanding, incurred in the ordinary
course of acquiring, owning, financing and disposing of Purchased Loans; provided,
however, that any such trade payables incurred by Seller shall be paid within 60 days of
the date incurred.



(j) It has not made and will not make any loans or advances to any other Person, except as
permitted under this Agreement, and shall not acquire obligations or securities of any member or
any Affiliate of any member or any other Person.



(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a
business of its size and character and in light of its contemplated business operations.



(l) It shall not seek its dissolution, liquidation or winding up, in whole or in part, or
suffer any Change of Control or consolidation or merger with respect to Seller.



(m) It will not commingle its funds and other assets with those of any of its Affiliates or
any other Person.



(n) It has maintained and will maintain its assets in such a manner that it will not be costly
or difficult to segregate, ascertain or identify its individual assets from those of any of its
Affiliates or any other Person.



(o) It has not held and will not hold itself out to be responsible for the debts or
obligations of any other Person.



(p) The Seller shall not take any of the following actions without the affirmative vote of the
Independent Director: (i) permit its members to dissolve or liquidate the Seller, in whole or in
part; (ii) consolidate or merge with or into any other entity or convey or transfer all or
substantially all of its properties and assets to any entity; or (iii) institute any proceeding to
be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or file a petition or answer or consent seeking reorganization or relief
under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the
filing of any such petition or to the appointment of a receiver, rehabilitator, conservator,
liquidator, assignee, trustee or sequestrator (or other similar official) of the Seller or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs, or make
an assignment for the benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or take any action in furtherance of any of the foregoing.



(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to
the acquisition, origination, ownership, financing and disposition of Purchased Loans.



(r) It has conducted and shall conduct its business consistent with the requirements of being
a Special Purpose Entity.



(s) It shall not maintain any employees.



(t) It shall at all times maintain at least one Independent Director. For so long as the
Repurchase Obligations are outstanding, Seller shall not take any of the actions contemplated by
Section 13(p) above (including when applicable without the affirmative vote of such Independent
Director).



(u) It shall not pledge its assets to secure the obligations of any other Person.




14. EVENTS OF DEFAULT; REMEDIES



(a) 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. With respect to each Transaction, each of the following
clauses (i) through (xv) shall be an Event of Default under this Agreement:




	 	(i)	 	Seller fails to repurchase the Purchased Loans upon the
applicable Repurchase Date;






	 	(ii)	 	Seller fails to comply in all material respects with Section 4
hereof;






	 	(iii)	 	an Act of Insolvency occurs with respect to Seller or Sponsor;






	 	(iv)	 	Seller shall admit in writing to the Buyer its inability to, or
its intention not to, perform any of its obligations hereunder;






	 	(v)	 	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 Loans, or (B) if a Transaction is recharacterized as a
secured financing, the Transaction Documents with respect to any Transaction
shall for any reason cease to create a valid first priority security interest
in favor of Buyer in any of the Purchased Loans;






	 	(vi)	 	if an event occurs which would constitute (a) an Event of
Default under the ISDA Master Agreement or (b) a Termination Event or an
Additional Termination Event under the ISDA Master Agreement (and, in the case
of this clause (b), Seller has failed to meet its obligation to pay the Early
Termination Amount, if any, pursuant to the terms of Section 6 of such ISDA
Master Agreement);






	 	(vii)	 	failure of the Buyer to receive within one (1) Business Day
after any Remittance Date the accreted value of the Price Differential (less
any amount of such Price Differential previously paid by Seller to Buyer);






	 	(viii)	 	failure of the Seller to make any other payment owing to the Buyer which has
become due, whether by acceleration or otherwise under the terms of this
Agreement which failure is not remedied within the applicable period (in the
case of a failure pursuant to Section 4) or five (5) Business Days (in the case
of any other such failure);






	 	(ix)	 	any governmental, regulatory, or self-regulatory authority
shall have removed, restricted, suspended or terminated the rights, privileges,
or operations of Seller which has a material adverse effect on the financial
condition or business operations of Seller;






	 	(x)	 	a Change of Control shall have occurred;






	 	(xi)	 	any representation made by Seller 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 set forth in
Section 10(b)(viii) made by the Seller, which shall not be considered an Event
of Default if incorrect or untrue in any material respect, provided the Seller
repurchases the related Purchased Loan on an Early Repurchase Date no later
than five (5) Business Days after receiving notice of such incorrect or untrue
representation and terminates the related Transaction; provided further Seller
shall not have made any such representation with actual knowledge that it was
materially incorrect or untrue at the time made);






	 	(xii)	 	the Sponsor shall fail to observe any of the financial
covenants set forth in the Guaranty or shall have defaulted or failed to
perform under the Guaranty in any material respect (after the expiration of any
applicable grace, notice and/or cure periods);






	 	(xiii)	 	a final non-appealable judgment by any competent court in the United States
of America having jurisdiction over Seller for the payment of money in an
amount greater than $100,000 (in the case of the Seller) or $2,500,000 (in the
case of the Sponsor) shall have been rendered against Seller or the Sponsor,
unless execution of such judgment is stayed by the posting of cash or a bond or
other collateral acceptable to Buyer in the amount of the judgment;






	 	(xiv)	 	Sponsor shall have defaulted or failed to perform under any
note, indenture, loan agreement, guaranty, swap agreement or any other
contract, agreement or transaction to which it is a party, which default
(A) involves the failure to pay a monetary obligation in excess of $2,500,000,
or (B) permits the acceleration of the maturity of obligations in excess of
$2,500,000 by any other party to or beneficiary of such note, indenture, loan
agreement, guaranty, swap agreement or other contract agreement or transaction;
provided, however, that any such default, failure to perform or
breach shall not constitute an Event of Default if Sponsor cures such default,
failure to perform or breach, as the case may be, within the grace notice
and/or cure period, if any, provided under the applicable agreement; or






	 	(xv)	 	if Seller shall breach or fail to perform any of the terms,
covenants or obligations 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 fifteen (15) days after written
notice thereof to Seller from the applicable party or its successors or
assigns, provided, that if such breach or failure is of a nature that it cannot
be cured within said fifteen (15) day period and Seller commences and
diligently continues curing such breach or failure within such fifteen (15) day
period, then Seller shall have an additional fifteen (15) days (i.e. thirty
(30) days in total) to cure such breach or failure (each of (i) through (xv),
an “Event of Default”).





(b) If an Event of Default shall occur and be continuing, 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), 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 Section 14(b)(i) of this Agreement:






	 	(A)	 	Seller’s obligations hereunder to repurchase
all Purchased Loans 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 Sections 4 or 5 of
this Agreement and applied to such Repurchase Price, and (II) any
amounts applied to the Repurchase Price pursuant to Section 14(b)(iii)
of this Agreement); and






	 	(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 Loans.






	 	(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
reasonably deem satisfactory any or all of the Purchased Loans or (B) in its
sole discretion elect, in lieu of selling all or a portion of such Purchased
Loans, to give Seller credit for such Purchased Loans in an amount equal to the
market value of such Purchased Loans as determined by Buyer in its sole
discretion against the aggregate unpaid Repurchase Price for such Purchased
Loans and any other amounts owing by Seller under the Transaction Documents.
The proceeds of any disposition of Purchased Loans effected pursuant to this
Section 14(b)(iii) shall be applied, (v) first, to the actual, out-of-pocket
costs and expenses reasonably incurred by Buyer in connection with Seller’s
default; (w) second, the amount, if any, payable by Seller in the event any
Hedging Transactions related to such Purchased Loans are being terminated;
(x) third, to the Repurchase Price; (y) fourth, to any other outstanding
obligation of Seller to Buyer or its Affiliates pursuant to this Agreement; and
(z) fifth, to pay the surplus, if any, to whoever may be lawfully entitled to
receive such surplus.






	 	(iv)	 	The parties recognize that it may not be possible to purchase
or sell all of the Purchased Loans on a particular Business Day, or in a
transaction with the same purchaser, or in the same manner because the market
for such Purchased Loans may not be liquid. In view of the nature of the
Purchased Loans, the parties agree that liquidation of a Transaction or the
Purchased Loans 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 Loans, and nothing
contained herein shall (A) obligate Buyer to liquidate any Purchased Loans on
the occurrence and during the continuance of an Event of Default or to
liquidate all of the Purchased Loans 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, (B) all actual costs incurred in connection
with the termination of Hedging Transactions, and (C) any other actual loss,
damage, cost or expense directly arising or resulting from the occurrence of an
Event of Default with respect to Seller.






	 	(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, 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 Purchased Loans
against all of Seller’s obligations to Buyer pursuant to this Agreement,
whether or not such obligations are then due, without prejudice to Buyer’s
right to recover any deficiency.






	 	(vii)	 	Subject to the notice and grace 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 (other than with respect to Buyer)
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 which 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 any defense Seller might otherwise have arising
from the use of nonjudicial process, disposition of any or all of the Purchased
Loans, 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.






	 	(ix)	 	Upon the designation of any Accelerated Repurchase Date, the
Buyer may, without prior notice to the Seller, set off any sum or obligation
(whether or not arising under this Agreement, whether matured or unmatured,
whether or not contingent and irrespective of the currency, place of payment or
booking office of the sum or obligation) owed by Seller to Buyer or any
Affiliate of Buyer against any sum or obligation (whether or not arising under
this Agreement, whether matured or unmatured, whether or not contingent and
irrespective of the currency, place of payment or booking office of the sum or
obligation) owed by Buyer or any Affiliate of Buyer to Seller. Buyer will give
written notice to the other party of any set off effected under this Section
14(b)(ix). If a sum or obligation is unascertained, Buyer may in good faith
estimate that obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is ascertained.
Nothing in this Section 14(b)(ix) shall be effective to create a charge or
other security interest. This Section 14(b)(ix) shall be without prejudice and
in addition to any right of set-off, combination of accounts, lien or other
rights to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).






15. 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.




16. 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
RECORDINGS IN ANY COURT, ARBITRATION, OR OTHER PROCEEDINGS, IF AND TO THE EXTENT CONSISTENT WITH
APPLICABLE LAW AND THE RULES OF COURT AND EVIDENCE.




17. 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 attempted 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 attempted 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
Section. A notice shall be deemed to have been given: (a) in the case of hand delivery, at
the time of delivery, (b) in the case of registered or certified mail, when delivered or the first
attempted delivery on a Business Day, (c) in the case of expedited prepaid delivery upon the first
attempted delivery on a Business Day, or (d) in the case of telecopier, upon receipt of answerback
confirmation, provided that such telecopied notice was also delivered as required in this
Section. A party receiving a notice which does not comply with the technical requirements
for notice under this Section may elect to waive any deficiencies and treat the notice as having
been properly given.




18. 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.




19. NON-ASSIGNABILITY



(a) The rights and obligations of the Seller under the Transaction Documents and under any
Transaction shall not be assigned by the Seller without the prior written consent of the Buyer.



(b) Buyer shall be entitled to assign its rights and obligations under the Transaction
Documents and/or under any Transaction (subject to the terms of Section 8(a)) to any other Person
or issue one or more participation interests with respect to any or all of the Transactions and, in
connection therewith, may bifurcate or allocate (i.e. senior/subordinate) amounts due to Buyer;
provided, however, with respect to participations, Seller shall not be obligated to deal directly
with any party other than Buyer or to pay or reimburse Buyer for any costs that would not have been
incurred by Buyer had no participation interests in such Transactions been issued.



(c) Subject to the foregoing, the Transaction Documents and any Transactions shall be binding
upon and shall inure to the benefit of the parties and their respective successors and assigns.
Nothing in the Transaction Documents, express or implied, shall give to any Person, other than the
parties to the Transaction Documents and their respective successors, any benefit or any legal or
equitable right, power, remedy or claim under the Transaction Documents.




20. GOVERNING LAW



This Agreement shall be governed by the laws of the State of New York without giving effect to
the conflict of law principles thereof.




21. 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 Section 4(a) or 4(b)
hereof will not constitute a waiver of any right to do so at a later date.




22. USE OF EMPLOYEE PLAN ASSETS



(a) If assets of an employee benefit plan subject to any provision of the Employee Retirement
Income Security Act of 1974 (“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 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 Section, any such Transaction
shall proceed only if Seller furnishes or has furnished to Buyer its most recent available
unaudited statement of its financial condition.



(c) By entering into a Transaction pursuant to this Section, 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 which 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 a Seller in any outstanding Transaction involving a
Plan Party.




23. INTENT



(a) The parties recognize and agree that: (i) each Transaction is a “repurchase agreement” as
that term is defined in Section 101(47) of the Bankruptcy Code (except insofar as the term of the
Transactions may render such definition inapplicable) and a “securities contract” as that term is
defined in Section 741(7) of the Bankruptcy Code, (ii) payments under this Agreement are deemed
“margin payments” or “settlement payments,” as defined in Section 741 of the Bankruptcy Code, and
(iii) the grant of a security interest set forth in Sections 6 and 29(b) hereof and the Guaranty,
each of which secures the rights of the Buyer hereunder also constitutes a “repurchase agreement”
as contemplated by Section 101(47)(A)(v) of the Bankruptcy Code (except insofar as the term of the
Transactions may render such definition inapplicable) and a “securities contract” as contemplated
by Section 741(7)(A)(xi) of the Bankruptcy Code. It is further understood that this Agreement
constitutes a “master netting agreement” as defined in Section 101(38A) of the Bankruptcy Code, as
amended, with respect to the Transaction so constituting a “repurchase agreement” or “securities
contract”.



(b) The parties recognize and agree that each of Buyer and Seller, with respect to the other
party in this Agreement, is a “repo participant” as that term is defined in Section 101(46) of the
Bankruptcy Code (except insofar as the term of the Transactions may render such definition
inapplicable).



(c) The parties recognize and agree that each party (for so long as each is either a
“financial institution,” “financial participant,” repo participant, or “master netting participant”
or other entity listed in Section 555, 559, 561, 362(b)(6), or 362(b)(7) of the Bankruptcy Code)
shall be entitled to the “safe harbor” benefits and protections afforded under the Bankruptcy Code
with respect to a “repurchase agreement” and a “securities contract” and a “master netting
agreement,” including (x) the rights set forth in Sections 3 and 14 and in Section 555, 559, and
561 of the Bankruptcy Code to liquidate the Purchased Loans and/or accelerate or terminate this
Agreement, and (y) the right to offset or net out termination payments, payment amounts or other
transfer obligations and otherwise exercise contractual rights as set forth in Sections 362(b)(6),
362(b)(7), 362(b)(27), 362(o), and 546 of the Bankruptcy Code.



(d) Each party hereto hereby further agrees that it shall not challenge the characterization
of (i) this Agreement as a “repurchase agreement”, “securities contract” and/or “master netting
agreement”, or (ii) each party as a “repo participant” within the meaning of the Bankruptcy Code
except insofar as, in the case of a “repurchase agreement” or “repo participant”, the term of the
Transactions would render such definition inapplicable.



(e) It is understood that either party’s right to accelerate or terminate this Agreement or to
liquidate assets delivered to it in connection with the Transactions hereunder or to exercise any
other remedies pursuant to Section 14 or 29 hereof is a contractual right to accelerate, terminate
or liquidate this Agreement or the Transactions as described in Sections 555 and 559 of the
Bankruptcy Code. It is further understood and agreed that either party’s right to cause the
termination, liquidation, or acceleration of, or to offset net termination values, payment amounts
or other transfer obligations arising under or in connection with, this Agreement or the
Transactions hereunder is a contractual right to cause the termination, liquidation, or
acceleration of, or to offset net termination values, payment amounts or other transfer obligations
arising under or in connection with, this Agreement as described in Section 561 of the Bankruptcy
Code.



(f) 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 of the Transactions hereunder is a “qualified financial contract,” as
that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar
as the type of assets subject to the Transactions would render such definition inapplicable).



(g) 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 the Transactions
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).



(h) In light of the intent set forth above in this Section 23, Seller agrees that, from time
to time upon the written request of Buyer, Seller will execute and deliver any supplements,
modifications, addendums or other documents as may be necessary or desirable, in Buyer’s good faith
discretion, in order to cause this Agreement and the Transactions contemplated hereby to qualify
for, comply with the provisions of, or otherwise satisfy, maintain or preserve the criteria for
safe harbor treatment under the Bankruptcy Code for “repurchase agreements”, “securities contracts”
and “master netting agreements”; provided, however, that Buyer’s failure to request, or Buyer’s or
Seller’s failure to execute, such supplements, modifications, addendums or other documents does not
in any way alter or otherwise change the intention of the parties hereto that this Agreement and
the Transactions hereunder constitute “repurchase agreements”, “securities contracts” and/or a
“master netting agreement” as such terms are defined in the Bankruptcy Code.



(i) Notwithstanding anything to the contrary in this Agreement, it is the intention of the
parties that, for U.S. Federal, state and local income and franchise tax purposes, the Transactions
constitute a loan from Buyer to Seller, and that Seller is and, so long as no Event of Default
shall have occurred and be continuing, will continue to be, treated as the owner of the Purchased
Loans for such purposes. Unless prohibited by applicable law, Seller and Buyer (and its assignees
and participants, if any) shall treat the Transactions as described in the preceding sentence for
all U.S. Federal, state and local income and franchise tax purposes (including, without
limitations, on any and all filings with any U.S. Federal, state or local taxing authority).




24. 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.




25. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL



(a) Each party irrevocably and unconditionally (i) submits to the 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.



(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 Section 25 shall affect the right of the Buyer or Seller to serve legal process in any other
manner permitted by law or affect the right of the Buyer or Seller to bring any action or
proceeding against the other party 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.




26. 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, guaranty or representation whatsoever as to the merits (either legal, regulatory,
tax, business, investment, financial accounting or otherwise) of the Transaction Documents or any
Transaction thereunder.




27. INDEMNITY



The Seller hereby agrees to indemnify the Buyer 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 which may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement and the documents
delivered in connection herewith, other than income or similar taxes of the Buyer), fees, costs,
expenses (including reasonable attorneys fees and disbursements) or disbursements (all of the
foregoing, collectively “Indemnified Amounts”) which 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
thereunder 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
Indemnified Amounts resulting from the gross negligence or willful misconduct of any 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 Loans 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, that, in each case, results from anything other than
Buyer’s gross negligence or willful misconduct. In any suit, proceeding or action brought by Buyer
in connection with any Purchased Loan for any sum owing thereunder, or to enforce any provisions of
any Purchased Loan, Seller will save, indemnify and hold Buyer harmless from and against all actual
out-of-pocket expense (including reasonable attorneys’ fees), actual out-of-pocket 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 actual costs and
out-of-pocket expenses incurred in connection with Buyer’s due diligence reviews with respect to
the Purchased Loans (including, without limitation, those incurred pursuant to Section 28 hereof)
and the enforcement or the preservation of Buyer’s rights under this Agreement or any Transaction
contemplated hereby, including without limitation the reasonable fees and disbursements of its
counsel. Seller hereby acknowledges that, the obligation of Seller under this Agreement is a
recourse obligation of Seller.




28. DUE DILIGENCE



Seller acknowledges that, at reasonable times and upon reasonable notice to Seller, Buyer has
the right to perform continuing due diligence reviews with respect to the Purchased Loans, for
purposes of verifying compliance with the representations, warranties and specifications made
hereunder, or otherwise, and Seller agrees that upon reasonable prior written 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 Loan Files, Servicing Records and any and
all documents, records, agreements, instruments or information relating to such Purchased Loans in
the possession or under the control of Seller, any other servicer or subservicer of Seller and/or
the Custodian. Seller also shall make available to Buyer a knowledgeable financial or accounting
officer for the purpose of answering financial or accounting questions respecting the Purchased
Loan Files and the Purchased Loans. Without limiting the generality of the foregoing, Seller
acknowledges that Buyer may enter into Transactions with the 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 Loans. Buyer may underwrite such Purchased
Loans itself or engage a third party underwriter to perform such underwriting. Seller agrees to
reasonably cooperate with Buyer and any third party underwriter reasonably acceptable to Seller 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 Loans in the possession, or under the control, of Seller.
Seller further agrees that Seller shall reimburse Buyer for any and all actual costs and expenses
reasonably incurred by Buyer in connection with Buyer’s activities pursuant to this Section 28.




29. SERVICING



(a) Seller and Buyer agree that all Servicing Rights with respect to the Purchased Loans are
being transferred hereunder to Buyer on the applicable Purchase Date and such Servicing Rights
shall be transferred by Buyer to Seller upon Seller’s payment of the Repurchase Price for such
applicable Purchased Loan. Notwithstanding the purchase and sale of the Purchased Loans and
Servicing Rights hereby, Seller or, upon request of Seller, any third party servicer approved by
Buyer shall be granted a revocable license to exercise the Servicing Rights with respect to the
Purchased Loans for the benefit of Buyer and, if Buyer shall exercise its rights to pledge or
hypothecate a Purchased Loan prior to the Repurchase Date pursuant to Section 8, Buyer’s assigns
(which license shall be deemed automatically revoked upon the occurrence and during the continuance
of an Event of Default); provided, however, that the obligations of Seller or such
third party to service the Purchased Loans shall cease, at Seller’s option, upon the payment by
Seller to Buyer of the Repurchase Price therefor. Seller shall service or cause the servicer to
service the Purchased Loans pursuant to this Agreement in accordance with Accepted Servicing
Practices approved by Buyer in the exercise of its reasonable business judgment and maintained by
other prudent mortgage lenders with respect to senior interests in mortgage loans similar to the
Purchased Loans. Seller shall obtain the written consent of Buyer prior to appointing any third
party servicer for a Purchased Loan, which consent shall not be unreasonably withheld or delayed so
long as such servicer is rated not lower than “Average” by Standard & Poor’s Ratings Services in
its ratings of primary servicers.



(b) Seller agrees that Buyer is the owner of all servicing records, including but not limited
to any and all servicing agreements (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 Loans (the “Servicing
Records”) so long as the Purchased Loans are subject to this Agreement. Seller grants Buyer a
security interest in all servicing fees and rights relating to the Purchased Loans and all
Servicing Records to secure the obligation of the Seller or its designee to service in conformity
with this Section and any other obligation of Seller to Buyer. Seller covenants to safeguard such
Servicing Records which are in Seller’s possession 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 Loans on a servicing released basis or (ii)
terminate the Seller or any servicer of the Purchased Loans with or without cause, in each case
without payment of any termination fee.



(d) Seller shall not employ or permit a servicer to employ sub-servicers to service the
Purchased Loans without the prior written approval of Buyer, which consent shall not be
unreasonably withheld or delayed so long as such sub-servicer is rated not lower than “Average” by
Standard & Poor’s Ratings Services in its ratings of primary servicers. If the Purchased Loans are
serviced by a sub-servicer to Seller, Seller shall irrevocably assign all rights, title and
interest in the Servicing Agreements in the Purchased Loans to Buyer.



(e) Seller shall cause any sub-servicers engaged by Seller to execute a letter agreement with
Buyer acknowledging Buyer’s security interest, agreeing that it shall deposit all Income with
respect to the applicable Purchased Loan(s) in the Cash Management Accounts and acknowledging that
upon the occurrence and during the continuance of an Event of Default Buyer may terminate such
sub-servicer without the requirement to pay any termination or similar fee.



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




30. 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.



(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. Signatures delivered by email (in PDF format) shall be considered binding with
the same force and effect as original signatures.



(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. Seller agrees to pay Buyer promptly 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 Loans, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of the Collateral and
for the custody, care or preservation of the Collateral (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 promptly 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 in the name of Buyer or its nominee. All such
expenses shall be recourse obligations of Seller to Buyer under this Agreement.



(e) 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.



(f) 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.



(g) 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.



(h) 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.



(i) The parties recognize that each Transaction is a “securities contract” as that term is
defined in Section 741 of Title 11 of the United States Code, as amended.




31. TAXES



(a) Any and all payments by or on account of any obligation of Seller under any Transaction
Document shall be made without deduction or withholding for any Taxes, except as required by
applicable law. If any applicable law requires the deduction or withholding of any Tax from any
such payment, then Seller shall make (or cause to be made) such deduction or withholding and shall
timely pay (or cause to be timely paid) the full amount deducted or withheld to the relevant
Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax,
then the sum payable shall be increased by Seller as necessary so that after such deduction or
withholding has been made (including such deductions and withholdings applicable to additional sums
payable under this Section 31) Buyer receives an amount equal to the sum it would have received had
no such deduction or withholding been made.



(b) Seller shall timely pay any Other Taxes of which it is aware to the relevant Governmental
Authority in accordance with applicable law.



(c) Seller shall indemnify Buyer, within ten (10) Business Days after demand therefor, for the
full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section 31) payable or paid by Buyer or required to be
withheld or deducted from a payment to Buyer, and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail
calculation of the amount of such payment or liability (together with a certified copy of the
return reporting such payment, if applicable, or other evidence of such payment reasonably
satisfactory to the Seller) delivered to Seller by Buyer shall be conclusive absent manifest error.



(d) Buyer shall deliver to Seller such documentation as prescribed by applicable law or as
reasonably requested by Seller as will enable Seller to determine whether or not payments hereunder
or under any other Transaction Document to or for the benefit of Buyer (or any assignee or
participant thereof) is subject to tax withholding, backup withholding or information reporting
requirements. Without limiting the generality of the foregoing, if Buyer (or an assignee or
participant thereof) is entitled to an exemption from or reduction of withholding tax with respect
to payments made under any Transaction Document, Buyer shall deliver to Seller, at the time or
times prescribed by applicable law and otherwise as reasonably requested by Seller, such properly
completed and executed documentation as prescribed by applicable law or as reasonably requested by
Seller as will permit such payments to be made without withholding or at a reduced rate of
withholding. Without limiting the generality of the foregoing:




	 	(i)	 	On or prior to the date on which the Buyer becomes a Buyer
under this Agreement and prior to the entry in the register of any assignment
to a U.S. Person (and from time to time thereafter as required by applicable
law or upon the reasonable request of Seller) the Buyer shall deliver to the
Seller two (2) executed originals of IRS Form W-9 (or successor forms)
certifying that Buyer (and/or such assignee) is exempt from U.S. federal backup
withholding tax.






	 	(ii)	 	On or prior to entry in the register of an assignment to an
assignee that is not a U.S. Person (and from time to time thereafter as
required by applicable law or upon the reasonable request of Seller) the Buyer
shall deliver to the Seller two (2) executed originals of IRS Forms W-8ECI,
W-8BEN, W-8IMY (or any successor forms thereof, as applicable) or other
applicable form, certificate or document prescribed by the United States
Internal Revenue Service certifying as to such person’s entitlement to
exemption from, or reduction in the rate of, withholding Taxes.





(e) If a payment made to the Buyer (or any assignee or participant thereof) under any
Transaction Document would be subject to U.S. federal withholding Tax imposed by FATCA if such
person were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such person shall deliver to
Seller at the time or times prescribed by law and at such time or times reasonably requested by
Seller such documentation prescribed by applicable law (including as prescribed by Section
1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Seller as
may be necessary for Seller to comply with its obligations under FATCA and to determine that such
person has complied with it’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (c), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement



(f) Buyer may not effect an assignment (and may not reflect such assignment in the register)
to an assignee that is not a U.S. Person, unless such assignee delivers a valid U.S. branch
withholding certificate on IRS Form W-8IMY (or any successor thereto) evidencing its agreement with
the Buyer and the Seller to be treated as a U.S. Person for U.S. federal withholding purposes.



(g) Buyer (and each applicable assignee and participant) agrees that if any form or
certification it previously delivered (on behalf of itself or any assignee or any participant
thereof) expires or becomes obsolete or inaccurate in any respect, it shall update (in the case of
an assignee or participant, by obtaining such updated form for such person) such form or
certification or promptly notify Seller in writing of its legal inability to do so.



(h) If any party determines, in its sole discretion exercised in good faith, that it has
received a refund of any Taxes as to which it has been indemnified pursuant to this Section 31
(including by the payment of additional amounts pursuant to this Section 31), it shall pay to the
indemnifying party an amount equal to such refund (but only to the extent of indemnity payments
made under this Section 31 with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid over pursuant to this Section 31(h) (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) in the event that such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this Section 31(h), in no event will the indemnified party be required to pay any
amount to an indemnifying party pursuant to this Section 31(h) the payment of which would place the
indemnified party in a less favorable net after-Tax position than the indemnified party would have
been in if the indemnification payments or additional amounts giving rise to such refund had never
been paid. This Section 31(h) shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems
confidential) to the indemnifying party or any other Person.



(i) Each party’s obligations under this Section 31 shall survive any assignment of rights by,
or the replacement of, Buyer, the termination of the Transactions and the repayment, satisfaction
or discharge of all obligations under any Transaction Document.]




32. CONFIDENTIALITY



Seller agrees to maintain the confidentiality of any information relating to a rate provided
by a reference bank (as described in the definition of LIBOR), except (a) to its directors,
officers, employees, advisors or affiliates on a confidential and need-to-know basis in connection
herewith, (b) as consented to by the applicable reference bank or (c) as required by any
Requirement of Law, or as requested or required by an Governmental Authority or regulatory
authority or exchange (in which case Seller agrees to inform the applicable reference bank promptly
thereof prior to such disclosure).




33. JOINT AND SEVERAL OBLIGATIONS



Each Seller hereby acknowledges and agrees that (i) each Seller shall be jointly and severally
liable to Buyer to the maximum extent permitted by any Requirement of Law for all Repurchase
Obligations, (ii) the liability of each Seller with respect to the Repurchase Obligations (A) shall
be absolute and unconditional to the extent set forth in this Agreement and the other Transaction
Documents and shall remain in full force and effect (or be reinstated) until all Repurchase
Obligations shall have been paid, performed and/or satisfied, as applicable, in full, and (B) until
such payment, performance and/or satisfaction, as applicable, has occurred, shall not be
discharged, affected, modified or impaired on the occurrence from time to time of any event,
including any of the following, whether or not with notice to or the consent of each Seller (it
being understood and agreed that no notice or consent shall be imputed to either Seller where
neither Seller received the same, and the provisions of this section shall in no event relieve any
requirement contained in this Agreement or the other Transaction Documents to provide notice where
such notice is required and neither Seller has received delivery of such notice or to obtain
consent where such consent is required and neither Seller has provided such consent), (1) the
waiver, compromise, settlement, release, termination or amendment (including any extension or
postponement of the time for payment, performance, satisfaction, renewal or refinancing) of any of
the Repurchase Obligations (other than a waiver, compromise, settlement, release or termination in
full of the Repurchase Obligations), (2) the failure to give notice to each Seller of the
occurrence of an Event of Default, (3) the release by Buyer of any Purchased Loan (whether with or
without consideration) or the acceptance by Buyer of any additional collateral or the availability
or claimed availability of any other collateral or source of repayment or any non-perfection or
other impairment of collateral, (4) the release of any Person primarily or secondarily liable for
all or any part of the Repurchase Obligations, whether by Buyer or in connection with any Act of
Insolvency affecting a Seller or any other Person who, or any of whose property, shall at the time
in question be obligated in respect of the Repurchase Obligations or any part thereof, or (5) to
the extent permitted by any Requirement of Law, any other event, occurrence, action or circumstance
that would, in the absence of this Section 33, result in the release or discharge of a Seller from
the performance or observance of any Repurchase Obligation, (iii) Buyer shall not be required first
to initiate any suit or to exhaust its remedies against a Seller or any other Person for such
Seller or Person to become liable, or against any of the Purchased Loans, in order to enforce the
Transaction Documents and each Seller expressly agrees that, notwithstanding the occurrence of any
of the foregoing, each Seller shall be and remain directly and primarily liable for all sums due
under any of the Transaction Documents, (iv) when making any demand hereunder against a Seller,
Buyer may, but shall be under no obligation to, make a similar demand on another Seller, and any
failure by Buyer to make any such demand or to collect any payments from another Seller, or any
release of another Seller shall not relieve such Seller in a respect of which a demand or
collection is not made or a Seller not so released of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of
Buyer against such Seller, and (v) on disposition by Buyer of any property encumbered by any
Purchased Loans, each Seller shall be and shall remain jointly and severally liable for any
deficiency to the extent set forth in this Agreement and the other Transaction Documents.



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




BUYER:




CITIBANK, N.A.




By: /s/ Richard B. Schlenger

Name: Richard B. Schlenger

Title: Authorized Signatory




[Signatures Continue on Following Page]





SELLER:



	 
	RAIT CMBS CONDUIT I, LLC,

a Delaware limited liability company

By: RAIT Funding, LLC, a Delaware limited liability company, its sole Member

By: Taberna Realty Finance Trust, a Maryland real estate investment trust, its

sole Member

By: /s/ James J. Sebra

	 

	Name: James J. Sebra

Title: Chief Financial Officer







	 
	RAIT CRE CONDUIT III, LLC,
	a Delaware limited liability company
	By:	 	RAIT Partnership, L.P., a Delaware limited partnership, its sole Member
	By:	 	RAIT General, Inc., a Maryland corporation, its general partner
	By:	 	/s/ Scott F. Schaeffer
	Name: Scott F. Schaeffer
	Title: Chief Executive Officer
	ANNEXES AND EXHIBITS





	 	 	 
	ANNEX I
	 	Names and Addresses for Communications between Parties

	EXHIBIT I
	 	Form of Confirmation

	EXHIBIT II
	 	Authorized Representatives of Seller

	EXHIBIT III
	 	Form of Custodial Delivery

	EXHIBIT IV
	 	Eligible Loan Due Diligence Checklist

	EXHIBIT V
	 	Form of Power of Attorney

	EXHIBIT VI (A)
	 	Representations and Warranties Regarding Each Individual Fixed

Rate Purchased Loan

	EXHIBIT VI (B)
	 	Representations and Warranties Regarding Each Individual

Floating Rate Purchased Loan

	EXHIBIT VII
	 	Collateral Tape

	EXHIBIT VIII
	 	Form of Transaction Request

	EXHIBIT IX
	 	Form of Irrevocable Direction Letter







2




ANNEX I




Names and Addresses for Communications Between Parties




Buyer:




Citibank, N.A.


388 Greenwich Street


New York, New York 10013


Attention: Richard Schlenger


Tel: (212) 816-7806


Fax: (212) 816-8307




and




Sidley Austin llp


787 Seventh Avenue


New York, New York 10019


Attention: Brian Krisberg, Esq.


Tel: (212) 839-8735


Fax: (212) 839-5599



Seller:




RAIT CMBS Conduit I, LLC


c/o RAIT Financial Trust


450 Park Avenue


New York, New York 10022


Attention: Scott Davidson


Tel: (212) 735-1490


Fax: (212) 735-1499




and




RAIT CRE Conduit III, LLC


c/o RAIT Financial Trust


450 Park Avenue


New York, New York 10022


Attention: Scott Davidson


Tel: (212) 735-1490


Fax: (212) 735-1499



With copies to:




RAIT Financial Trust


2929 Arch Street, 17th Floor


Philadelphia, PA 19104


Attention: Jamie Reyle, Esq., Corporate Counsel


Tel: (215) 243-9019


Fax: (215) 405-2945



And, if the notice is being sent under Section 4(a), with a copy to:




RAIT Financial Trust


2929 Arch Street, 17th Floor


Philadelphia, PA 19104


Attention: James Sebra, Chief Accounting Officer


Tel: (215) 243-9000


Fax: (215) 243-9097



EXHIBIT I




CONFIRMATION STATEMENT




Ladies and Gentlemen:



Citibank, N.A., is pleased to deliver our written CONFIRMATION of our agreement to enter into
the Transaction pursuant to which Citibank, N.A. shall purchase from you the Purchased Loans
identified in the Amended and Restated Master Repurchase Agreement, dated as of July 28, 2014 (the
“Agreement”), between Citibank, N.A. (“Buyer”), RAIT CMBS Conduit I, LLC
(“Original Seller”) and RAIT CRE Conduit III, LLC (“New Seller”, and together with
Original Seller, collectively, “Seller”) as follows below and on the attached Schedule 1.
Capitalized terms used herein without definition have the meanings given in the Agreement.



	 	 	 	 	 
	Purchase Date:

	 	 	     , 2014	 
	Purchased Loans:

	 	As identified on attached Schedule 1

	Aggregate Principal Amount of

Purchased Loans:

	 	As identified on attached Schedule 1




	Repurchase Date:

	 	     , 2014, subject to extension as

provided in the Agreement

	Purchase Price:

	 	 	$	 
	Pricing Rate:

	 	one month LIBOR plus [2.50] [2.00]%

	Buyer’s Margin Percentage:

	 	 	[133.33] [166.67]	%
	Governing Agreements:

	 	As identified on attached Schedule 1

	Seller’s Account Information:

	 	








	 	 	 
	Name and address for

communications:
	 	Buyer: Citibank, N.A.

—

388 Greenwich Street

New York, New York 10013

Attention: Richard Schlenger

Tel: (212) 816-7806

Fax: (212) 816-8307

	 	 	Seller: [RAIT CMBS Conduit I, LLC,

	 	 	 

	 	 	c/o RAIT Financial Trust

2929 Arch Street, 17th Floor

Philadelphia, PA 19104

Attention: Jamie Reyle, Esq., Corporate Counsel

Tel: (215) 243-9019

Fax: (215) 405-2945]

[RAIT CRE Conduit III, LLC

c/o RAIT Financial Trust

450 Park Avenue

New York, New York 10022

Attention: Scott Davidson

Tel: (212) 735-1490

Fax: (212) 735-1499]







3





CITIBANK, N.A.




By:

Name:

Title:





By:

Name:

Title:




AGREED AND ACKNOWLEDGED:



[RAIT CMBS CONDUIT I, LLC,





a Delaware limited liability company




	 	 	By: RAIT Funding, LLC,






a Delaware limited liability company,


its sole Member




	 	 	 	By: Taberna Realty Finance Trust,






a Maryland real estate investment trust,


its sole Member




By:       

Name:

Title: ]







[RAIT CRE CONDUIT III, LLC,

a Delaware limited liability company




	 	 	By: RAIT Partnership, L.P.,






a Delaware limited partnership,




	 	 	 	its sole Member






	 	 	 	By: RAIT General, Inc.,






a Maryland corporation,




its general partner




By:       

Name:

Title: ]











Schedule 1 to Confirmation Statement



	 
	Purchased Loan:

	Aggregate Principal Amount:







EXHIBIT II




AUTHORIZED REPRESENTATIVES OF SELLER




	 	 	 	 	 
	Name	 	Specimen Signature






EXHIBIT III




FORM OF CUSTODIAL DELIVERY




On this        of       , 20      , [RAIT CMBS Conduit I, LLC] [RAIT CRE Conduit III, LLC] as
Seller under that certain Amended and Restated Master Repurchase Agreement, dated as of July 28,
2014 (the “Repurchase Agreement”) by and among Citibank, N.A. (“Buyer”) and RAIT
CMBS Conduit I, LLC and RAIT CRE Conduit III, LLC, does hereby deliver to Wells Fargo Bank National
Association (“Custodian”), as custodian under that certain Custodial Agreement, dated as of
October 27, 2011, among Buyer, Custodian and RAIT CMBS Conduit I, LLC, as amended by that certain
Amendment No. 1 to Custodial Agreement, dated as of July 28, 2014, among Custodian, RAIT CMBS
Conduit I, LLC, RAIT CRE Conduit III, LLC and Buyer (the “Custodial Agreement”), the
Purchased Loan Files with respect to the Purchased Loans to be purchased by Buyer pursuant to the
Repurchase Agreement, which Purchased Loans are listed on the Purchased Loan Schedule attached
hereto and which Purchased Loans shall be subject to the terms of the Custodial Agreement on the
date hereof.



With respect to the Purchased Loan Files delivered hereby, for the purposes of issuing the
Trust Receipt, the Custodian shall review the Purchased Loan Files to ascertain delivery of the
documents listed in Section 2.01 to the Custodial Agreement.



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



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



	 
	[RAIT CMBS CONDUIT I, LLC,

a Delaware limited liability company

By: RAIT Funding, LLC, a Delaware limited liability company, its sole Member

By: Taberna Realty Finance Trust, a Maryland real estate investment trust, its

sole Member

By:      

Name:

	Title: ]

[RAIT CRE CONDUIT III, LLC,

a Delaware limited liability company

By: RAIT Partnership, L.P., a Delaware limited partnership, its sole Member

By: RAIT General, Inc., a Maryland corporation, its general partner

By:      

Name:

	Title: ]







EXHIBIT IV




ELIGIBLE LOAN DUE DILIGENCE CHECKLIST




General Information


Asset Summary Report


Site Inspection Report


Maps and Photos



Borrower/Sponsor Information


Credit Reports


Financial Statements & Tax Returns


Borrower Structure or Org Chart


Bankruptcy and Foreclosure History



Property Information


Historical Operating Statements


Rent Rolls


Budget


Insurance Review


Retail Sales Figures


Market Survey



Leasing Information


Stacking Plan


Major Leases


Tenant Estoppels


Standard Lease Forms


SNDA’s



Third Party Reports


Appraisals


Environmental Site Assessments


Engineering Reports


Seismic Reports



Other Information


Hotel Franchise Compliance Reports


Hotel Franchise Agreement


Hotel Franchise Comfort Letters


Ground Lease


Management Contract



Documentation


Purchase and Sale Agreement


Closing Statement



Legal BinderEXHIBIT V




FORM OF POWER OF ATTORNEY




“Know All Men by These Presents, that [RAIT CMBS Conduit I, LLC] [RAIT CRE Conduit III, LLC]
(“Seller”), does hereby appoint Citibank, N.A. (“Buyer”), its attorney-in-fact to
act in Seller’s name, place and stead in any way which Seller could do with respect to (i) the
completion of the endorsements of the Mortgage Notes and the Assignments of Mortgages, (ii) the
recordation of the Assignments of Mortgages and (iii) after the occurrence and during the
continuance of an Event of Default, the enforcement of the Seller’s rights under the Purchased
Loans purchased by Buyer pursuant to the Amended and Restated Master Repurchase Agreement dated as
of July 28, 2014 (the “Repurchase Agreement”), between Buyer and Seller, and to take such
other steps as may be necessary or desirable to enforce Buyer’s rights against such Purchased
Loans, the related Purchased Loan Files and the Servicing Records to the extent that Seller is
permitted by law to act through an agent.



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



TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, SELLER HEREBY AGREES THAT ANY THIRD PARTY
RECEIVING A DULY EXECUTED COPY OF 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 [      ], 2014.



	 
	[RAIT CMBS CONDUIT I, LLC,

a Delaware limited liability company

By: RAIT Funding, LLC, a Delaware limited liability company, its sole Member

By: Taberna Realty Finance Trust, a Maryland real estate investment trust, its

sole Member

By:      

Name:

	Title: ]

[RAIT CRE CONDUIT III, LLC,

a Delaware limited liability company

By: RAIT Partnership, L.P., a Delaware limited partnership, its sole Member

By: RAIT General, Inc., a Maryland corporation, its general partner

By:      

Name:

	Title: ]







EXHIBIT VI (A)




REPRESENTATIONS AND WARRANTIES

REGARDING EACH INDIVIDUAL FIXED RATE PURCHASED LOAN




	 	 	 	 	 
	 	(1	)	 	Whole Loan; Ownership of Purchased Loans.  Except with respect to a

Purchased Loan that is part of a Whole Loan, each Purchased Loan is a

Whole Loan and not a participation interest in a Purchased Loan.  Each

Purchased Loan that is part of a Whole Loan is a senior portion of a

whole mortgage loan evidenced by a senior note.  At the time of the sale,

transfer and assignment to Buyer, no Mortgage Note or Mortgage was

subject to any assignment (other than assignments to Seller),

participation or pledge, and the Seller had good title to, and was the

sole owner of, each Purchased Loan free and clear of any and all liens,

charges, pledges, encumbrances, participations, any other ownership

interests on, in or to such Purchased Loan other than any servicing

rights appointment or similar agreement and rights of the holder of a

related “B note” in an “A/B” structure in a commercial real estate loan

(a “Junior Interest”).  Seller has full right and authority to sell,

assign and transfer each Purchased Loan, and the assignment to Buyer

constitutes a legal, valid and binding assignment of such Purchased Loan

free and clear of any and all liens, pledges, charges or security

interests of any nature encumbering such Purchased Loan other than the

rights of the holder of a related Junior Interest.

	 	 	 	 	 

	 	(2	)	 	Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of

Leases (if a separate instrument), guaranty and other agreement executed

by or on behalf of the related Mortgagor, guarantor or other obligor in

connection with such Purchased Loan is the legal, valid and binding

obligation of the related Mortgagor, guarantor or other obligor (subject

to any non-recourse provisions contained in any of the foregoing

agreements and any applicable state anti-deficiency, one action or market

value limit deficiency legislation), as applicable, and is enforceable in

accordance with its terms, except (i) as such enforcement may be limited

by (a) bankruptcy, insolvency, fraudulent transfer, reorganization,

moratorium or other similar laws affecting the enforcement of creditors’

rights generally and (b) general principles of equity (regardless of

whether such enforcement is considered in a proceeding in equity or at

law) and (ii) that certain provisions in such Purchased Loan Documents

(including, without limitation, provisions requiring the payment of

default interest, late fees or prepayment/yield maintenance fees, charges

and/or premiums) are, or may be, further limited or rendered

unenforceable by or under applicable law, but (subject to the limitations

set forth in clause (i) above) such limitations or unenforceability will

not render such Purchased Loan Documents invalid as a whole or materially

interfere with the Mortgagee’s realization of the principal benefits

and/or security provided thereby (clauses (i) and (ii) collectively, the

“Standard Qualifications”).

	 	 	 	 	 








Except as set forth in the immediately preceding sentence, there is no valid offset,
defense, counterclaim or right of rescission available to the related Mortgagor with respect
to any of the related Mortgage Notes, Mortgages or other Purchased Loan Documents,
including, without limitation, any such valid offset, defense, counterclaim or right based
on intentional fraud by Seller in connection with the origination of the Purchased Loan,
that would deny the Mortgagee the principal benefits intended to be provided by the Mortgage
Note, Mortgage or other Purchased Loan Documents.

 


	 	 	 	 	 
	 	(3	)	 	Mortgage Provisions.  The Purchased Loan Documents for each Purchased

Loan contain provisions that 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,

nonjudicial foreclosure subject to the limitations set forth in the

Standard Qualifications.

	 	 	 	 	 

	 	(4	)	 	Mortgage Status; Waivers and Modifications.  Since origination and except

by written instruments set forth in the related Purchased Loan File (a)

the material terms of such Mortgage, Mortgage Note, Purchased Loan

guaranty, and related Purchased Loan Documents have not been waived,

impaired, modified, altered, satisfied, canceled, subordinated or

rescinded in any respect which materially interferes with the security

intended to be provided by such Mortgage; (b) no related Mortgaged

Property or any portion thereof has been released from the lien of the

related Mortgage in any manner which materially interferes with the

security intended to be provided by such Mortgage or the use or operation

of the remaining portion of such Mortgaged Property; and (c) neither the

related Mortgagor nor the related guarantor has been released from its

material obligations under the Purchased Loan.

	 	 	 	 	 

	 	(5	)	 	Lien; Valid Assignment.  Subject to the Standard Qualifications, each

assignment of Mortgage and assignment of Assignment of Leases to the

Mortgagee constitutes a legal, valid and binding assignment to the

Mortgagee.  Each related Mortgage and Assignment of Leases is freely

assignable without the consent of the related Mortgagor.  Each related

Mortgage is a legal, valid and enforceable first lien on the related

Mortgagor’s fee (or if identified in the Due Diligence Package,

leasehold) interest in the Mortgaged Property in the principal amount of

such Purchased Loan or allocated loan amount (subject only to Permitted

Encumbrances (as defined below)), except as the enforcement thereof may

be limited by the Standard Qualifications. Such Mortgaged Property

(subject to and excepting Permitted Encumbrances) as of origination was,

and as of the Purchase Date, to the Seller’s knowledge, is free and clear

of any recorded mechanics’ liens, recorded materialmen’s liens and other

recorded encumbrances which are prior to or equal with the lien of the

related Mortgage, except those which are bonded over, escrowed for or

insured against by a lender’s title insurance policy (as described

below), and, to the Seller’s knowledge and subject to the rights of

tenants (as tenants only) (subject to and excepting Permitted

Encumbrances), no rights exist which under law could give rise to any

such lien or encumbrance that would be prior to or equal with the lien of

the related Mortgage, except those which are bonded over, escrowed for or

insured against by a lender’s title insurance policy (as described

below).  Notwithstanding anything herein to the contrary, no

representation is made as to the perfection of any security interest in

rents or other personal property to the extent that possession or control

of such items or actions other than the filing of Uniform Commercial Code

financing statements is required in order to effect such perfection.

	 	 	 	 	 

	 	(6	)	 	Permitted Liens; Title Insurance.  Each Mortgaged Property securing a

Purchased Loan is covered by an American Land Title Association loan

title insurance policy or a comparable form of loan title insurance

policy approved for use in the applicable jurisdiction (or, if such

policy is yet to be issued, by a pro forma policy, a preliminary title

policy with escrow instructions or a “marked up” commitment, in each case

binding on the title insurer) (the “Title Policy”) in the original

principal amount of such Purchased Loan (or with respect to a Purchased

Loan secured by multiple properties, an amount equal to at least the

allocated loan amount with respect to the Title Policy for each such

property) after all advances of principal (including any advances held in

escrow or reserves), that insures for the benefit of the owner of the

indebtedness secured by the Mortgage, the first priority lien of the

Mortgage, which lien is subject only to (a) the lien of current real

property taxes, water charges, sewer rents and assessments due and

payable but not yet delinquent; (b) covenants, conditions and

restrictions, rights of way, easements and other matters of public

record; (c) the exceptions (general and specific) and exclusions set

forth in such Title Policy; (d) other matters to which like properties

are commonly subject; (e) the rights of tenants (as tenants only) under

leases (including subleases) pertaining to the related Mortgaged Property

and condominium declarations; (f) if the related Purchased Loan is

cross-collateralized and cross-defaulted with another Whole Loan (each a

“Crossed Mortgage Loan”), the lien of the Mortgage for such other Whole

Loan; and (g) if the related Purchased Loan is part of a Whole Loan, the

rights of the holder of the related Junior Interest; provided that none

of which items (a) through (g), individually or in the aggregate,

materially and adversely interferes with the value or current use of the

Mortgaged Property or the security intended to be provided by such

Mortgage or the Mortgagor’s ability to pay its obligations when they

become due (collectively, the “Permitted Encumbrances”).  Except as

contemplated by clause (f) of the preceding sentence, none of the

Permitted Encumbrances are mortgage liens that are senior to or

coordinate and co-equal with the lien of the related Mortgage.  Such

Title Policy (or, if it has yet to be issued, the coverage to be provided

thereby) is in full force and effect, all premiums thereon have been paid

and no claims have been made by the Seller thereunder and no claims have

been paid thereunder. Neither the Seller, nor to the Seller’s knowledge,

any other holder of the Purchased Loan, has done, by act or omission,

anything that would materially impair the coverage under such Title

Policy.

	 	 	 	 	 

	 	(7	)	 	Junior Liens.  It being understood that B notes secured by the same

Mortgage as a Purchased Loan are not subordinate mortgages or junior

liens, except for any Purchased Loan that is cross-collateralized and

cross-defaulted with another Purchased Loan, there are no subordinate

mortgages or junior liens securing the payment of money encumbering the

related Mortgaged Property (other than Permitted Encumbrances, taxes and

assessments, mechanics and materialmens liens (which are the subject of

the representation in paragraph (5) above), and equipment and other

personal property financing).  Except as set forth in the Due Diligence

Package, the Seller has no knowledge of any mezzanine debt secured

directly by interests in the related Mortgagor.

	 	 	 	 	 







 



	 	 	 	 	 
	 	(8	)	 	Assignment of Leases and Rents.  There exists as part of the related

Purchased Loan File an Assignment of Leases (either as a separate

instrument or incorporated into the related Mortgage). Subject to

the Permitted Encumbrances, each related Assignment of Leases

creates a valid first-priority collateral assignment of, or a valid

first-priority lien or security interest in, rents and certain

rights under the related lease or leases, subject only to a license

granted to the related Mortgagor to exercise certain rights and to

perform certain obligations of the lessor under such lease or

leases, including the right to operate the related leased property,

except as the enforcement thereof may be limited by the Standard

Qualifications.  The related Mortgage or related Assignment of

Leases, subject to applicable law, provides that, upon an event of

default under the Purchased Loan, a receiver is permitted to be

appointed for the collection of rents or for the related Mortgagee

to enter into possession to collect the rents or for rents to be

paid directly to the Mortgagee.

	 	 	 	 	 

	 	(9	)	 	UCC Filings.  If the related Mortgaged Property is operated as a

hospitality property, the Seller has filed and/or recorded or caused

to be filed and/or recorded (or, if not filed and/or recorded, have

been submitted in proper form for filing and/or recording), UCC

financing statements in the appropriate public filing and/or

recording offices necessary at the time of the origination of the

Purchased Loan to perfect a valid security interest in all items of

physical personal property reasonably necessary to operate such

Mortgaged Property owned by such Mortgagor and located on the

related Mortgaged Property (other than any non-material personal

property, any personal property subject to a purchase money security

interest, a sale and leaseback financing arrangement as permitted

under the terms of the related Purchased Loan Documents or any other

personal property leases applicable to such personal property), to

the extent perfection may be effected pursuant to applicable law by

recording or filing, as the case may be.  Subject to the Standard

Qualifications, each related Mortgage (or equivalent document)

creates a valid and enforceable lien and security interest on the

items of personalty described above.  No representation is made as

to the perfection of any security interest in rents or other

personal property to the extent that possession or control of such

items or actions other than the filing of UCC financing statements

are required in order to effect such perfection.

	 	 	 	 	 

	 	(10	)	 	Condition of Property.  Seller or the originator of the Purchased

Loan inspected or caused to be inspected each related Mortgaged

Property within six months of origination of the Purchased Loan and

within thirteen months of the Purchase Date.

	 	 	 	 	 








An engineering report or property condition assessment was prepared in connection with the
origination of each Purchased Loan no more than thirteen months prior to the Purchase
Date.  To the Seller’s knowledge, based solely upon due diligence customarily performed in
connection with the origination of comparable mortgage loans, as of the Purchase Date, each
related 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 use or value of such Mortgaged Property as security for the Purchased
Loan.

 


	 	 	 	 	 
	 	(11	)	 	Taxes and Assessments.  All taxes, governmental assessments and other

outstanding governmental charges (including, without limitation, water

and sewage charges), or installments thereof, which could be a lien on

the related Mortgaged Property that would be of equal or superior

priority to the lien of the Mortgage and that prior to the Purchase Date

have become delinquent in respect of each related Mortgaged Property

have been paid, or an escrow of funds has been established in an amount

sufficient to cover such payments and reasonably estimated interest and

penalties, if any, thereon.  For purposes of this representation and

warranty, real estate taxes and governmental assessments and other

outstanding governmental charges 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.

	 	 	 	 	 







	 	 	 	 	 
	 	(12	)	 	Condemnation.  As of the date of origination and to the Seller’s

knowledge as of the Purchase Date, there is no proceeding pending, and,

to the Seller’s knowledge as of the date of origination and as of the

Purchase Date, there is no proceeding threatened, for the total or

partial condemnation of such Mortgaged Property that would have a

material adverse effect on the value, use or operation of the Mortgaged

Property.

	 	 	 	 	 

	 	(13	)	 	Actions Concerning Purchased Loan.  As of the date of origination and to

the Seller’s knowledge as of the Purchase Date, there was no pending or

filed action, suit or proceeding, arbitration or governmental

investigation involving any Mortgagor, guarantor, or Mortgagor’s

interest in the Mortgaged Property, an adverse outcome of which would

reasonably be expected to materially and adversely affect (a) such

Mortgagor’s title to the Mortgaged Property, (b) the validity or

enforceability of the Mortgage, (c) such Mortgagor’s ability to perform

under the related Purchased Loan, (d) such guarantor’s ability to

perform under the related guaranty, (e) the principal benefit of the

security intended to be provided by the Purchased Loan Documents or (f)

the current principal use of the Mortgaged Property.

	 	 	 	 	 







 



	 	 	 	 	 
	 	(14	)	 	Escrow Deposits.  All escrow deposits and payments required to be

escrowed with Mortgagee pursuant to each Purchased Loan are in the

possession, or under the control, of the Seller or its servicer,

and there are no deficiencies (subject to any applicable grace or

cure periods) in connection therewith, and all such escrows and

deposits (or the right thereto) that are required to be escrowed

with Mortgagee under the related Purchased Loan Documents are being

conveyed by the Seller to Buyer or its servicer.

	 	 	 	 	 

	 	(15	)	 	No Holdbacks.  The principal amount of the Purchased Loan stated in

the Due Diligence Package has been fully disbursed as of the

Purchase Date and there is no requirement for future advances

thereunder (except in those cases where the full amount of the

Purchased Loan has been disbursed but a portion thereof is being

held in escrow or reserve accounts pending the satisfaction of

certain conditions relating to leasing, repairs or other matters

with respect to the related Mortgaged Property, the Mortgagor or

other considerations determined by Seller to merit such holdback).

	 	 	 	 	 

	 	(16	)	 	Insurance.  Each related Mortgaged Property is, and is required

pursuant to the related Mortgage to be, insured by a property

insurance policy providing coverage for loss in accordance with

coverage found under a “special cause of loss form” or “all risk

form” that includes replacement cost valuation issued by an insurer

meeting the requirements of the related Purchased Loan Documents

and having a claims-paying or financial strength rating of at least

“A-:VIII” from A.M. Best Company or “A3” (or the equivalent) from

Moody’s Investors Service, Inc. or “A-” from Standard & Poor’s

Ratings Service (collectively, the “Insurance Rating

Requirements”), in an amount (subject to a customary deductible)

not less than the lesser of (1) the original principal balance of

the Purchased Loan and (2) the full insurable value on a

replacement cost basis of the improvements, furniture, furnishings,

fixtures and equipment owned by the Mortgagor and included in the

Mortgaged Property (with no deduction for physical depreciation),

but, in any event, not less than the amount necessary or containing

such endorsements as are necessary to avoid the operation of any

coinsurance provisions with respect to the related Mortgaged

Property.

	 	 	 	 	 








Each related Mortgaged Property is also covered, and required to be covered pursuant to the
related Purchased Loan Documents, by business interruption or rental loss insurance which
(subject to a customary deductible) covers a period of not less than 12 months (or with
respect to each Purchased Loan on a single asset with a principal balance of $50 million or
more, 18 months).

 



If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged
Property is in an area identified in the Federal Register by the Federal Emergency
Management Agency as “a Special Flood Hazard Area”, the related Mortgagor  is required to
maintain insurance  in the maximum amount available under the National Flood Insurance
Program.

 



If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or
the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related
Mortgagor is required to maintain coverage for windstorm and/or windstorm related perils
and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements or
endorsement covering damage from windstorm and/or windstorm related perils and/or named
storms.

 



The Mortgaged Property is covered, and required to be covered pursuant to the related
Purchased Loan Documents, by a commercial general liability insurance policy issued by an
insurer meeting the Insurance Rating Requirements including coverage for property damage,
contractual damage and personal injury (including bodily injury and death) in amounts as are
generally required by prudent institutional commercial mortgage lenders, and in any event
not less than $1 million per occurrence and $2 million in the aggregate.

 



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 scenario expected
limit (“SEL”) for the Mortgaged Property in the event of an earthquake. In such instance,
the SEL was based on a 475-year return period, an exposure period of 50 years and a 10%
probability of exceedance. If the resulting report concluded that the SEL 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:VIII” by A.M. Best Company
or “A3” (or the equivalent) from Moody’s Investors Service, Inc. or “A-”  by Standard &
Poor’s Ratings Service in an amount not less than 100% of the SEL.

 



The Purchased Loan Documents require insurance proceeds in respect of a property loss to be
applied either (a) to the repair or restoration of all or part of the related Mortgaged
Property, with respect to all property losses in excess of 5% of the then outstanding
principal amount of the related Purchased Loan, the Mortgagee (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or restoration progresses,
or (b) to the payment of the outstanding principal balance of such Purchased Loan together
with any accrued interest thereon.




All premiums on all insurance policies referred to in this section required to be paid as of
the Purchase Date have been paid, and such insurance policies name the Mortgagee under the
Purchased Loan and its successors and assigns as a loss payee under a mortgagee endorsement
clause or, in the case of the general liability insurance policy, as named or additional
insured. Such insurance policies will inure to the benefit of the Buyer.  Each related
Purchased Loan obligates the related Mortgagor to maintain all such insurance and, at such
Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the
Mortgagor’s reasonable cost and expense and to charge such Mortgagor for related
premiums.  All such insurance policies (other than commercial liability policies) require at
least 10 days’ prior notice to the Mortgagee of termination or cancellation arising because
of nonpayment of a premium and at least 30 days prior notice to the Mortgagee of termination
or cancellation (or such lesser period, not less than 10 days, as may be required by
applicable law) arising for any reason other than non-payment of a premium and no such
notice has been received by Seller.

 


	 	 	 	 	 
	 	(17	)	 	Access; Utilities; Separate Tax Lots.  Each Mortgaged Property (a) is

located on or adjacent to a public road and has direct legal access to

such road, or has access  via an irrevocable easement or irrevocable

right of way permitting ingress and egress to/from a public road, (b) is

served by or has uninhibited access rights to public or private water

and sewer (or well and septic) and all required utilities, all of which

are appropriate for the current use of the Mortgaged Property, and (c)

constitutes one or more separate tax parcels which do not include any

property which is not part of the Mortgaged Property or is subject to an

endorsement under the related Title Policy insuring the Mortgaged

Property, or in certain cases, an application has been, or will be, made

to the applicable governing authority for creation of separate tax lots,

in which case the Purchased Loan requires the Mortgagor to escrow an

amount sufficient to pay taxes for the existing tax parcel of which the

Mortgaged Property is a part until the separate tax lots are created.

	 	 	 	 	 

	 	(18	)	 	No Encroachments.  To Seller’s knowledge based solely on surveys

obtained in connection with origination and the Mortgagee’s Title Policy

(or, if such policy is not yet issued, a pro forma title policy, a

preliminary title policy with escrow instructions or a “marked up”

commitment) obtained in connection with the origination of each

Purchased Loan, all material 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 Loan are

within the boundaries of the related Mortgaged Property, except

encroachments that do not materially and adversely affect the value or

current use of such Mortgaged Property or for which insurance or

endorsements were obtained under the Title Policy.  No improvements on

adjoining parcels encroach onto the related Mortgaged Property except

for encroachments that do not materially and adversely affect the value

or current use of such Mortgaged Property or for which insurance or

endorsements were obtained under the Title Policy.  No improvements

encroach upon any easements except for encroachments the removal of

which would not materially and adversely affect the value or current use

of such Mortgaged Property or for which insurance or endorsements

obtained with respect to the Title Policy.

	 	 	 	 	 

	 	(19	)	 	No Contingent Interest or Equity Participation.  No Purchased Loan has a

shared appreciation feature, any other contingent interest feature or a

negative amortization feature or an equity participation by Seller

(except that a loan may provide for the accrual of the portion of

interest in excess of the rate in effect prior to its related

anticipated repayment date).

	 	 	 	 	 

	 	(20	)	 	REMIC.  The Purchased Loan is a “qualified mortgage” within the meaning

of Section 860G(a)(3) of the Code (but determined without regard to the

rule in Treasury Regulations Section 1.860G-2(f)(2) that treats certain

defective mortgage loans as qualified mortgages), and, accordingly, (A)

the issue price of the Purchased Loan to the related Mortgagor at

origination did not exceed the non-contingent principal amount of the

Purchased Loan and (B) either: (a) such Purchased Loan is secured by an

interest in real property (including buildings and structural components

thereof, but excluding personal property) having a fair market value (i)

at the date the Purchased Loan was originated at least equal to 80% of

the adjusted issue price of the Purchased Loan on such date or (ii) at

the Purchase Date at least equal to 80% of the adjusted issue price of

the Purchased Loan on such date, provided that for purposes hereof, the

fair market value of the real property interest must first be reduced by

(A) the amount of any lien on the real property interest that is senior

to the Purchased Loan and (B) a proportionate amount of any lien that is

in parity with the Purchased Loan; or (b) substantially all of the

proceeds of such Purchased Loan were used to acquire, improve or protect

the real property which served as the only security for such Purchased

Loan (other than a recourse feature or other third-party credit

enhancement within the meaning of Treasury Regulations Section

1.860G-2(a)(1)(ii)).  If the Purchased Loan was “significantly modified”

prior to the Purchase Date so as to result in a taxable exchange under

Section 1001 of the Code, it either (x) was modified as a result of the

default or reasonably foreseeable default of such Purchased Loan or (y)

satisfies the provisions of either sub-clause (B)(a)(i) above

(substituting the date of the last such modification for the date the

Purchased Loan was originated) or sub-clause (B)(a)(ii), including the

proviso thereto.  Any prepayment premium and yield maintenance charges

applicable to the Purchased Loan constitute “customary prepayment

penalties” within the meaning of Treasury Regulations Section

1.860G-1(b)(2).  All terms used in this paragraph shall have the same

meanings as set forth in the related Treasury Regulations.

	 	 	 	 	 







 



	 	 	 	 	 
	 	(21	)	 	Compliance with Usury Laws.  The interest rate (exclusive of any

default interest, late charges, yield maintenance charge, or

prepayment premiums) of such Purchased 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.

	 	 	 	 	 







 



	 	 	 	 	 
	 	(22	)	 	Authorized to do Business.  To the extent required under applicable

law, as of the Purchase Date or as of the date that such entity

held the Mortgage Note, each holder of the Mortgage Note was

authorized to originate, acquire and/or hold (as applicable) the

Mortgage Note in the jurisdiction in which each related Mortgaged

Property is located, or the failure to be so authorized does not

materially and adversely affect the enforceability of such

Purchased Loan by Buyer.

	 	 	 	 	 

	 	(23	)	 	Trustee under Deed of Trust.  With respect to each Mortgage which

is a deed of trust, as of the date of origination and, to the

Seller’s knowledge, as of the Purchase Date, 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 the Mortgage and applicable law or may be

substituted in accordance with the Mortgage and applicable law by

the related Mortgagee.

	 	 	 	 	 

	 	(24	)	 	Local Law Compliance.  To the Seller’s knowledge, based upon any of

a letter from any governmental authorities, a legal opinion, an

architect’s letter, a zoning consultant’s report, an endorsement to

the related Title Policy, or other affirmative investigation of

local law compliance consistent with the investigation conducted by

the Seller for similar commercial and multifamily mortgage loans

intended for securitization, the improvements located on or forming

part of each Mortgaged Property securing a Purchased Loan as of the

date of origination of such Purchased Loan (or related Whole Loan,

as applicable) and as of the Purchase Date, there are no material

violations of applicable zoning ordinances, building codes and land

laws (collectively “Zoning Regulations”) other than those which

(i) constitute a legal non-conforming use or structure, (ii) are

insured by the Title Policy or a law and ordinance insurance policy

or (iii ) would not have a material adverse effect on the value,

operation or net operating income of the Mortgaged Property.  The

terms of the Purchased Loan Documents require the Mortgagor to

comply in all material respects with all applicable governmental

regulations, zoning and building laws.

	 	 	 	 	 

	 	(25	)	 	Licenses and Permits.  Each Mortgagor covenants in the Purchased

Loan Documents that it shall keep all material licenses, permits

and applicable governmental authorizations necessary for its

operation of the Mortgaged Property in full force and effect, and

to the Seller’s knowledge based upon any of a letter from any

government authorities or other affirmative investigation of local

law compliance consistent with the investigation conducted by the

Seller for similar commercial and multifamily mortgage loans

intended for securitization, all such material licenses, permits

and applicable governmental authorizations are in effect.  The

Purchased Loan requires the related Mortgagor to be qualified to do

business in the jurisdiction in which the related Mortgaged

Property is located.

	 	 	 	 	 

	 	(26	)	 	Recourse Obligations.  The Purchased Loan Documents for each

Purchased Loan provide that such Purchased Loan (a) becomes full

recourse to the Mortgagor and guarantor (which is a natural person

or persons, or an entity distinct from the Mortgagor (but may be

affiliated with the Mortgagor) that has assets other than equity in

the related Mortgaged Property that are not de minimis) in any of

the following events: (i) if any voluntary petition for bankruptcy,

insolvency, dissolution or liquidation pursuant to federal

bankruptcy law, or any similar federal or state law, shall be filed

by the Mortgagor; (ii) Mortgagor or guarantor shall have colluded

with (or, alternatively, solicited or caused to be solicited) other

creditors to cause an involuntary bankruptcy filing with respect to

the Mortgagor or (iii) voluntary transfers of either the Mortgaged

Property or equity interests in Mortgagor made in violation of the

Purchased Loan Documents; and (b) contains provisions providing for

recourse against the Mortgagor and guarantor (which is a natural

person or persons, or an entity distinct from the Mortgagor (but

may be affiliated with the Mortgagor) that has assets other than

equity in the related Mortgaged Property that are not de minimis),

for losses and damages sustained by reason of Mortgagor’s (i)

misappropriation of rents after the occurrence of an event of

default under the Purchased Loan, (ii) misappropriation of (A)

insurance proceeds or condemnation awards or (B) security deposits

or, alternatively, the failure of any security deposits to be

delivered to Mortgagee upon foreclosure or action in lieu thereof

(except to the extent applied in accordance with leases prior to a

Purchased Loan event of default); (iii) fraud or intentional

material misrepresentation; (iv) breaches of the environmental

covenants in the Purchased Loan Documents; or (v) commission of

intentional material physical waste at the Mortgaged Property (but,

in some cases, only to the extent there is sufficient cash flow

generated by the related Mortgaged Property to prevent such waste).

	 	 	 	 	 







	 	 	 	 	 
	 	(27	)	 	Mortgage Releases.  The terms of the related Mortgage or related

Purchased Loan Documents do not provide for release of any material

portion of the Mortgaged Property from the lien of the Mortgage except

(a) a partial release, accompanied by principal repayment, or partial

Defeasance (as defined in paragraph (32)), of not less than a specified

percentage at least equal to the lesser of (i) 110% of the related

allocated loan amount of such portion of the Mortgaged Property and

(ii) the outstanding principal balance of the Purchased Loan, (b) upon

payment in full of such Purchased Loan, (c) upon a Defeasance defined in

(32) below, (d) releases of out-parcels that are unimproved or other

portions of the Mortgaged Property which will not have a material

adverse effect on the underwritten value of the Mortgaged Property and

which were not afforded any material value in the appraisal obtained at

the origination of the Purchased Loan and are not necessary for physical

access to the Mortgaged Property or compliance with zoning requirements,

or (e) as required pursuant to an order of condemnation or taking by a

State or any political subdivision or authority thereof.  With respect

to any partial release under the preceding clauses (a) or (d), either:

	 	 	 	 	(x) such release of collateral (i) would not constitute a “significant

modification” of the subject Purchased Loan within the meaning of

Treasury Regulations Section 1.860G-2(b)(2) and (ii) would not cause the

subject Purchased Loan to fail to be a “qualified mortgage” within the

meaning of Section 860G(a)(3)(A) of the Code; or (y) the Mortgagee or

servicer can, in accordance with the related Purchased Loan Documents,

condition such release of collateral on the related Mortgagor’s delivery

of an opinion of tax counsel to the effect specified in the immediately

preceding clause (x).  For purposes of the preceding clause (x), for all

Purchased Loans originated after December 6, 2010, if the fair market

value of the real property constituting such Mortgaged Property after

the release is not equal to at least 80% of the principal balance of the

Purchased Loan outstanding after the release, the Mortgagor is required

to make a payment of principal in an amount not less than the amount

required by any applicable legal requirements relating to any “real

estate mortgage investment conduit” within the meaning of Section 860D

of the Code that holds any interest in all or any portion of such

Purchased Loan.

	 	 	 	 	 







 




With respect to any partial release under the preceding clause (e), for all Purchased
Loans originated after December 6, 2010, the Mortgagor can be required to pay down the
principal balance of the Purchased Loan in an amount not less than the amount required by
any applicable legal requirements relating to any “real estate mortgage investment conduit”
within the meaning of Section 860D of the Code that holds any interest in all or any portion
of such Purchased Loan and, to such extent, may not be required to be applied to the
restoration of the Mortgaged Property or released to the Mortgagor, if, immediately after
the release of such portion of the Mortgaged Property from the lien of the Mortgage (but
taking into account the planned restoration) the fair market value of the real property
constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining
principal balance of the Purchased Loan.



  




No Purchased Loan that is secured by more than one Mortgaged Property or that is
cross-collateralized with another Purchased Loan permits the release of
cross-collateralization of the related Mortgaged Properties, other than in compliance with
the any applicable legal requirements relating to any “real estate mortgage investment
conduit” within the meaning of Section 860D of the Code that holds any interest in all or
any portion of such Purchased Loan.

 


	 	 	 	 	 
	 	(28	)	 	Financial Reporting and Rent Rolls.  Each Mortgage requires the

Mortgagor to provide the owner or holder of the Mortgage with quarterly

(other than for single-tenant properties) and annual operating

statements, and quarterly (other than for single-tenant properties) rent

rolls for properties that have leases contributing more than 5% of the

in-place base rent and annual financial statements, which annual

financial statements with respect to each Purchased Loan with more than

one Mortgagor are in the form of an annual combined balance sheet of the

Mortgagor entities (and no other entities), together with the related

combined statements of operations, members’ capital and cash flows,

including a combining balance sheet and statement of income for the

Mortgaged Properties on a combined basis.

	 	 	 	 	 

	 	(29	)	 	Acts of Terrorism Exclusion.  With respect to each Purchased Loan over

$20 million, the related special-form all-risk insurance policy and

business interruption policy (issued by an insurer meeting the Insurance

Rating Requirements) do not specifically exclude Acts of Terrorism, as

defined in the Terrorism Risk Insurance Act of 2002, as amended by the

Terrorism Risk Insurance Program Reauthorization Act of 2007

(collectively referred to as “TRIA”), from coverage, or if such coverage

is excluded, it is covered by a separate terrorism insurance

policy.  With respect to each other Purchased Loan, the related special

all-risk insurance policy and business interruption policy (issued by an

insurer meeting the Insurance Rating Requirements) did not, as of the

date of origination of the Purchased Loan, and, to Seller’s knowledge,

do not, as of the Purchase Date, specifically exclude Acts of Terrorism,

as defined in TRIA, from coverage, or if such coverage is excluded, it

is covered by a separate terrorism insurance policy.  With respect to

each Purchased Loan, the related Purchased Loan Documents do not

expressly waive or prohibit the Mortgagee from requiring coverage for

Acts of Terrorism, as defined in TRIA, or damages related thereto,

except to the extent that any right to require such coverage may be

limited by commercial availability on commercially reasonable terms;

provided, however, that if TRIA or a similar or subsequent statute is

not in effect, then, provided that terrorism insurance is commercially

available, the Mortgagor under each Purchased Loan is required to carry

terrorism insurance, but in such event the Mortgagor shall not be

required to spend more than the Terrorism Cap Amount on terrorism

insurance coverage, and if the cost of terrorism insurance exceeds the

Terrorism Cap Amount, the Mortgagor is required to purchase the maximum

amount  of terrorism insurance available with funds equal to the

Terrorism Cap Amount.  The “Terrorism Cap Amount”  is the specified

percentage (which is at least equal to 200%)  of the amount of the

insurance premium that is payable at such time  in respect of the

property and business interruption/rental loss insurance required under

the related Purchased Loan Documents (without giving effect to the cost

of terrorism and earthquake components of such casualty and business

interruption/rental loss insurance).

	 	 	 	 	 







	 	 	 	 	 
	 	(30	)	 	Due on Sale or Encumbrance.  Subject to specific exceptions set forth

below, each Purchased Loan contains a “due on sale” or other such

provision for the acceleration of the payment of the unpaid principal

balance of such Purchased Loan if, without the consent of the holder of

the Mortgage (which consent, in some cases, may not be unreasonably

withheld) and/or complying with the requirements of the related

Purchased Loan Documents (which provide for transfers without the

consent of the Mortgagee which are customarily acceptable to prudent

commercial and multifamily mortgage lending institutions lending on the

security of property comparable to the related Mortgaged Property,

including, without limitation, transfers of worn-out or obsolete

furnishings, fixtures, or equipment promptly replaced with property of

equivalent value and functionality and transfers by leases entered into

in accordance with the Purchased Loan Documents), (a) the related

Mortgaged Property, or any equity interest of greater than 50% in the

related Mortgagor, is directly or indirectly pledged, transferred or

sold, other than as related to (i) family and estate planning transfers

or transfers upon death or legal incapacity, (ii) transfers to certain

affiliates as defined in the related Purchased Loan Documents, (iii)

transfers of less than, or other than, a controlling interest in the

related Mortgagor, (iv) transfers to another holder of direct or

indirect equity in the Mortgagor, a specific Person designated in the

related Purchased Loan Documents or a Person satisfying specific

criteria identified in the related Purchased Loan Documents, such as a

qualified equityholder, (v) transfers of stock or similar equity units

in publicly traded companies or (vi) a substitution or release of

collateral within the parameters of paragraphs (27) and (32) herein, or

(vii) as set forth in the Due Diligence Package by reason of any

mezzanine debt that existed at the origination of the related Purchased

Loan, or future permitted mezzanine debt as set forth in the Due

Diligence Package or (b) the related Mortgaged Property is encumbered

with a subordinate lien or security interest against the related

Mortgaged Property, other than (i) any Junior Interest of any Purchased

Loan or any subordinate debt that existed at origination and is

permitted under the related Purchased Loan Documents, (ii) purchase

money security interests (iii) any Purchased Loan that is

cross-collateralized and cross-defaulted with another Whole Loan, as set

forth in the Due Diligence Package or (iv) Permitted Encumbrances.  The

Mortgage or other Purchased Loan Documents provide that to the extent

any rating agency fees are incurred in connection with the review of and

consent to any transfer or encumbrance, the Mortgagor is responsible for

such payment along with all other reasonable out-of-pocket fees and

expenses incurred by the Mortgagee relative to such transfer or

encumbrance.

	 	 	 	 	 







 



	 	 	 	 	 
	 	(31	)	 	Single-Purpose Entity.  Each Purchased Loan requires the Mortgagor

to be a Single-Purpose Entity for at least as long as the Purchased

Loan is outstanding.  Both the Purchased Loan Documents and the

organizational documents of the Mortgagor with respect to each

Purchased Loan with an unpaid principal balance as of the Purchase

Date in excess of $5 million provide that the Mortgagor is a

Single-Purpose Entity, and each Purchased Loan with an unpaid

principal balance as of the Purchase Date of $20 million or more

has a counsel’s opinion regarding non-consolidation of the

Mortgagor.  For this purpose, a “Single-Purpose Entity” shall mean

an entity, other than an individual, whose organizational documents

(or if the Purchased Loan has an unpaid principal balance as of the

Purchase Date equal to $5 million or less, its organizational

documents or the related Purchased Loan Documents) provide

substantially to the effect that it was formed or organized solely

for the purpose of owning and operating one or more of the

Mortgaged Properties securing the Purchased Loans and prohibit it

from engaging in any business unrelated to such Mortgaged Property

or commercial or multi-family properties, and whose organizational

documents further provide, or which entity represented in the

related Purchased Loan Documents, substantially to the effect that

it does not have any assets other than those related to its

interest in and operation of such Mortgaged Property or commercial

or multi-family properties, or any indebtedness other than as

permitted by the related Mortgage(s) or the other related Purchased

Loan Documents, that it has its own books and records and accounts

separate and apart from those of any other person (other than a

Mortgagor for a Whole Loan that is cross-collateralized and

cross-defaulted with the related Purchased Loan), and that it holds

itself out as a legal entity, separate and apart from any other

person or entity.

	 	 	 	 	 







	 	 	 	 	 
	 	(32	)	 	Defeasance.  With respect to any Purchased Loan that, pursuant to the

Purchased Loan Documents, can be defeased (a “Defeasance”), (i) the

Purchased Loan Documents provide for defeasance as a unilateral right of

the Mortgagor, subject to satisfaction of conditions specified in the

Purchased Loan Documents; (ii) the Purchased Loan cannot be defeased

within two years after the date of origination of such Purchased Loan;

(iii) the Mortgagor is permitted to pledge only United States

“government securities” within the meaning of Treasury Regulations

Section 1.860G-2(a)(8)(ii), the revenues from which will, in the case of

a full Defeasance, be sufficient to make all scheduled payments under

the Purchased Loan when due, including the entire remaining principal

balance on the maturity date (or on or after the first date on which

payment may be made without payment of a yield maintenance charge or

prepayment penalty) and if the Purchased Loan permits partial releases

of real property in connection with partial defeasance, the revenues

from the collateral will be sufficient to pay all such scheduled

payments calculated on a principal amount equal to a specified

percentage at least equal to the lesser of (i) 110% of the allocated

loan amount for the real property to be released and (ii) the

outstanding principal balance of the Purchased Loan; (iv) the Mortgagor

is required to provide a certification from an independent certified

public accountant that the collateral is sufficient to make all

scheduled payments under the Mortgage Note as set forth in (iii) above,

(v) if the Mortgagor would continue to own assets in addition to the

defeasance collateral, the portion of the Purchased Loan secured by

defeasance collateral is required to be assumed (or the Mortgagee may

require such assumption) by a Single-Purpose Entity; (vi) the Mortgagor

is required to provide an opinion of counsel that the Mortgagee has a

perfected security interest in such collateral prior to any other claim

or interest; and (vii) the Mortgagor is required to pay all rating

agency fees associated with defeasance (if rating confirmation is a

specific condition precedent thereto) and all other reasonable

out-of-pocket expenses associated with defeasance, including, but not

limited to, accountant’s fees and opinions of counsel.

	 	 	 	 	 

	 	(33	)	 	Fixed Interest Rates.  Each Purchased Loan bears interest at a rate that

remains fixed throughout the remaining term of such Purchased Loan,

except in situations where default interest is imposed.

	 	 	 	 	 

	 	(34	)	 	Ground Leases.   For purposes of this Exhibit VI(A), a “Ground Lease”

shall mean a lease creating a leasehold estate in real property where

the fee owner as the ground lessor conveys for a term or terms of years

its entire interest in the land and buildings and other improvements, if

any, comprising the premises demised under such lease to the ground

lessee (who may, in certain circumstances, own the building and

improvements on the land), subject to the reversionary interest of the

ground lessor as fee owner and does not include industrial development

agency (IDA) or similar leases for purposes of conferring a tax

abatement or other benefit.

	 	 	 	 	 








With respect to any Purchased Loan where the Purchased Loan is secured by a leasehold estate
under a Ground Lease in whole or in part, and the related Mortgage does not also encumber
the related lessor’s fee interest in such Mortgaged Property, based upon the terms of the
Ground Lease and any estoppel or other agreement received from the ground lessor in favor of
Seller, its successors and assigns, Seller represents and warrants that:

 


	 	 	 	 	 	 	 
	 	 	 	 	(a)
	 	The Ground Lease or a memorandum regarding such Ground

Lease has been duly recorded or submitted for recordation

in a form that is acceptable for recording in the

applicable jurisdiction.  The Ground Lease or an estoppel

or other agreement received from the ground lessor permits

the interest of the lessee to 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 adversely affect

the security provided by the related Mortgage.  No material

change in the terms of the Ground Lease had occurred since

the origination of the Purchased Loan, except as reflected

in any written instruments which are included in the

related Purchased Loan File;

	 	 	 	 	(b)
	 	The lessor under such Ground Lease has agreed in a writing

included in the related Purchased Loan File (or in such

Ground Lease) that the Ground Lease may not be amended

or  modified, or canceled or terminated by agreement of

lessor and lessee, without the prior written consent of the

Mortgagee;

	 	 	 	 	(c)
	 	The Ground Lease has an original term (or an original term

plus one or more optional renewal terms, which, under all

circumstances, may be exercised, and will be enforceable,

by either Mortgagor or the Mortgagee) that extends not less

than 20 years beyond the stated maturity of the related

Purchased Loan, or 10 years past the stated maturity if

such Purchased Loan fully amortizes by the stated maturity

(or with respect to a Purchased Loan that accrues on an

actual 360 basis, substantially amortizes);

	 	 	 	 	(d)
	 	The Ground Lease either (i) is not subject to any liens or

encumbrances superior to, or of equal priority with, the

Mortgage, except for the related fee interest of the ground

lessor and the Permitted Encumbrances, or (ii)  is subject

to a subordination, non-disturbance and attornment

agreement to which the Mortgagee on the lessor’s fee

interest in the Mortgaged Property is subject;

	 	 	 	 	(e)
	 	The Ground Lease does not place commercially unreasonable

restrictions on the identity of the Mortgagee and the

Ground Lease is assignable to the holder of the Purchased

Loan and its successors and assigns without the consent of

the lessor thereunder (provided that proper notice is

delivered to the extent required in accordance with such

Ground Lease), and in the event it is so assigned, it is

further assignable by the holder of the Purchased Loan and

its successors and assigns without the consent of (but with

prior notice to) the lessor;

	 	 	 	 	(f)
	 	The Seller has not received any written notice of material

default under or notice of termination of such Ground

Lease.  To the Seller’s knowledge, there is no material

default under such Ground Lease and no condition that, but

for the passage of time or giving of notice, would result

in a material default under the terms of such Ground Lease

and to the Seller’s knowledge, such Ground Lease is in full

force and effect as of the Purchase Date;

	 	 	 	 	(g)
	 	The Ground Lease or ancillary agreement between the lessor

and the lessee requires the lessor to give to the Mortgagee

written notice of any default, and provides that no notice

of default or termination is effective against the

Mortgagee unless such notice is given to the Mortgagee;

	 	 	 	 	(h)
	 	The Mortgagee is permitted a reasonable opportunity

(including, where necessary, sufficient time to gain

possession of the interest of the lessee under the Ground

Lease through legal proceedings) to cure any default under

the Ground Lease which is curable after the Mortgagee’s

receipt of notice of any default before the lessor may

terminate the Ground Lease;

	 	 	 	 	(i)
	 	The Ground Lease does not impose any restrictions on

subletting that would be viewed as commercially

unreasonable by a prudent commercial mortgage lender;

	 	 	 	 	(j)
	 	Under the terms of the Ground Lease, an estoppel or other

agreement received from the ground lessor and the related

Mortgage (taken together), any related insurance proceeds

or the portion of the condemnation award allocable to the

ground lessee’s interest (other than (i) de minimis amounts

for minor casualties or (ii) in respect of a total or

substantially total loss or taking as addressed in subpart

(k)) will be applied either to the repair or to restoration

of all or part of the related Mortgaged Property with (so

long as such proceeds are in excess of the threshold amount

specified in the related Purchased Loan Documents) 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 of the outstanding principal

balance of the Purchased Loan, together with any accrued

interest;

	 	 	 	 	(k)
	 	In the case of a total or substantially total taking or

loss, under the terms of the Ground Lease, an estoppel or

other agreement and the related Mortgage (taken together),

any related insurance proceeds, or portion of the

condemnation award allocable to ground lessee’s interest in

respect of a total or substantially total loss or taking of

the related Mortgaged Property to the extent not applied to

restoration, will be applied first to the payment of the

outstanding principal balance of the Purchased Loan,

together with any accrued interest; and

	 	 	 	 	(l)
	 	Provided that the Mortgagee cures any defaults which are

susceptible to being cured, the ground lessor has agreed to

enter into a new lease with Mortgagee upon termination of

the Ground Lease for any reason, including rejection of the

Ground Lease in a bankruptcy proceeding.

	 	(35	)	 	Servicing.  The servicing and collection practices used by the Seller with
respect to the Purchased Loan have been, in all respects, legal and have met
customary industry standards for servicing of commercial loans for conduit
loan program.
	 	 	 	 	 
	 	(36	)	 	Origination and Underwriting.  The origination practices of the Seller (or
the related originator if the Seller was not the originator) with respect to
each Purchased Loan have been, in all material respects, legal and as of the
date of its origination, such Purchased Loan (or the related Whole Loan, as
applicable) and the origination thereof complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Purchased Loan; provided that such
representation and warranty does not address or otherwise cover any matters
with respect to federal, state or local law otherwise covered in this Exhibit
VI(A).
	 	 	 	 	 
	 	(37	)	 	No Material Default; Payment Record.  No Purchased Loan has been more than 30
days delinquent, without giving effect to any grace or cure period, in making
required debt service payments since origination, and no Purchased Loan is
more than 30 days delinquent (beyond any applicable grace or cure period) in
making required payments as of the Purchase Date.  To the Seller’s knowledge,
there is (a) no material default, breach, violation or event of acceleration
existing under the related Purchased Loan, or (b) no event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, which default,
breach, violation or event of acceleration, in the case of either (a) or (b),
materially and adversely affects the value of the Purchased Loan or the
value, use or operation of the related Mortgaged Property, provided, however,
that this representation and warranty does not cover any default, breach,
violation or event of acceleration that specifically pertains to or arises
out of an exception scheduled to any other representation and warranty made
by the Seller in this Exhibit VI(A) (including, but not limited to, the prior
sentence).  No person other than the holder of such Purchased Loan may
declare any event of default under the Purchased Loan or accelerate any
indebtedness under the Purchased Loan Documents.
	 	 	 	 	 
	 	(38	)	 	Bankruptcy.  As of the date of origination of the related Purchased Loan and
to the Seller’s knowledge as of the Purchase Date, neither the Mortgaged
Property (other than any tenants of such Mortgaged Property), nor any portion
thereof, is the subject of, and no Mortgagor, guarantor or tenant occupying a
single-tenant property is a debtor in state or federal bankruptcy, insolvency
or similar proceeding.
	 	 	 	 	 
	 	(39	)	 	Organization of Mortgagor.  With respect to each Purchased Loan, in reliance
on certified copies of the organizational documents of the Mortgagor
delivered by the Mortgagor in connection with the origination of such
Purchased Loan (or related Whole Loan, as applicable), the 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.  Except with
respect to any Purchased Loan that is cross-collateralized and cross
defaulted with another Purchased Loan, no Purchased Loan has a Mortgagor that
is an affiliate of another Mortgagor.
	 	 	 	 	 
	 	(40	)	 	Environmental Conditions.  A Phase I environmental site assessment (or update
of a previous Phase I and or Phase II site assessment) and, with respect to
certain Purchased Loans, a Phase II environmental site assessment
(collectively, an “ESA”) meeting ASTM requirements conducted by a reputable
environmental consultant in connection with such Purchased Loan within 12
months prior to its origination date (or an update of a previous ESA was
prepared), and such ESA (i) did not identify the existence of recognized
environmental conditions (as such term is defined in ASTM E1527-05 or its
successor, hereinafter “Environmental Condition”) at the related Mortgaged
Property or the need for further investigation, or (ii) if the existence of
an Environmental Condition or need for further investigation was indicated in
any such ESA, then at least one of the following statements is true:  (A) an
amount reasonably estimated by a reputable environmental consultant to be
sufficient to cover the estimated cost to cure any material noncompliance
with applicable Environmental Laws or the Environmental Condition has been
escrowed by the related Mortgagor and is held or controlled by the related
Mortgagee; (B) if the only Environmental Condition relates to the presence of
asbestos-containing materials, radon in indoor air, lead based paint or lead
in drinking water, the only recommended action in the ESA is the institution
of such a plan, an operations or maintenance plan has been required to be
instituted by the related Mortgagor that, based on the ESA, can reasonably be
expected to mitigate the identified risk; (C) the Environmental Condition
identified in the related environmental report was remediated or abated in
all material respects prior to the date hereof, and, if and as appropriate, a
no further action or closure letter was obtained from the applicable
governmental regulatory authority (or the environmental issue affecting the
related Mortgaged Property was otherwise listed by such governmental
authority as “closed” or a reputable environmental consultant has concluded
that no further action is required); (D) an environmental policy or a
lender’s pollution legal liability insurance policy meeting the requirements
set forth below that covers liability for the identified circumstance or
condition was obtained from an insurer meeting the Insurance Rating
Requirements or rated no less than A- (or the equivalent) by Moody’s, S&P
and/or Fitch; (E) a party not related to the Mortgagor was identified as the
responsible party for such condition or circumstance and such responsible
party has financial resources reasonably estimated to be adequate to address
the situation; or (F) a party related to the Mortgagor having financial
resources reasonably estimated to be adequate to address the situation is
required to take action.  To Seller’s knowledge, except as set forth in the
ESA, there is no Environmental Condition (as such term is defined in ASTM
E1527-05 or its successor) at the related Mortgaged Property.
	 	 	 	 	 
	 	(41	)	 	Appraisal.  The Purchased Loan File contains an appraisal of the related
Mortgaged Property with an appraisal date within 6 months of the Purchased
Loan origination date, and within 12 months of the Purchase Date.  The
appraisal is signed by an appraiser who is a Member of the Appraisal
Institute (“MAI”) and, to the Seller’s knowledge, had no interest, direct or
indirect, in the Mortgaged Property or the Mortgagor or in any loan made on
the security thereof, and whose compensation is not affected by the approval
or disapproval of the Purchased Loan. Each appraiser has represented in such
appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the “Uniform Standards of Professional Appraisal Practice” as
adopted by the Appraisal Standards Board of the Appraisal Foundation. Each
appraisal contains a statement, or is accompanied by a letter from the
appraiser, to the effect that the appraisal was performed in accordance with
the requirements of FIRREA, as in effect on the date such Purchased Loan was
originated.
	 	 	 	 	 
	 	(42	)	 	Due Diligence Package.  The information pertaining to each Purchased Loan
which is set forth in the Due Diligence Package is true and correct in all
material respects as of the Purchase Date.
	 	 	 	 	 
	 	(43	)	 	Cross-Collateralization.  No Purchased Loan is cross-collateralized or
cross-defaulted with any other Purchased Loan.
	 	 	 	 	 
	 	(44	)	 	Advance of Funds by the Seller.  After origination, no advance of funds has
been made by Seller to the related Mortgagor other than in accordance with
the Purchased Loan Documents, and, to Seller’s knowledge, no funds have been
received from any person other than the related Mortgagor or an affiliate
for, or on account of, payments due on the Purchased Loan (other than as
contemplated by the Purchased Loan Documents, such as, by way of example and
not in limitation of the foregoing, amounts paid by the tenant(s) into a
Mortgagee-controlled lockbox if required or contemplated under the related
lease or Purchased Loan Documents).  Neither Seller nor any affiliate thereof
has any obligation to make any capital contribution to any Mortgagor under a
Purchased Loan, other than contributions made on or prior to the date hereof.
	 	 	 	 	 
	 	(45	)	 	Compliance with Anti-Money Laundering Laws.  Seller has complied in all
material respects with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001 with
respect to the origination of the Purchased Loan.
	 	 	 	 	 






For purposes of these representations and warranties, “Mortgagee” shall mean the mortgagee,
grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any
Purchased Loan or, if applicable, any agent or servicer on behalf of such party.

 


For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or
“the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise
expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and
employees directly responsible for the underwriting, origination, servicing or sale of the
Purchased Loans regarding the matters expressly set forth herein.



EXHIBIT VI (B)




REPRESENTATIONS AND WARRANTIES

REGARDING EACH INDIVIDUAL FLOATING RATE PURCHASED LOAN





	 	1.	 	Whole Loan; Ownership of Purchased Loans. Each Purchased Loan is a whole loan and
not a participation interest in a Purchased Loan. At the time of the sale, transfer and
assignment to Buyer, no Mortgage Note or Mortgage was subject to any assignment (other than
assignments to the Seller), participation (other than with respect to a performing senior or
pari passu senior or junior participation interest (a “Participation Interest”) in a
performing Purchased Loan evidenced by a original participation certificate, if any, that was
executed and delivered in connection with the Participation Interest) or pledge, and the
Seller had good title to, and was the sole owner of, each Purchased Loan free and clear of
any and all liens, charges, pledges, encumbrances, participations (other than with respect to
the Participation Interests), any other ownership interests on, in or to such Purchased Loan
other than any servicing rights appointment or similar agreement. Seller has full right and
authority to sell, assign and transfer each Purchased Loan, and the assignment to Buyer
constitutes a legal, valid and binding assignment of such Purchased Loan free and clear of
any and all liens, pledges, charges or security interests of any nature encumbering such
Purchased Loan.






	 	2.	 	Loan Document Status. Each related Mortgage Note, Mortgage, Assignment of Leases
(if a separate instrument), guaranty and other agreement executed by or on behalf of the
related Mortgagor, guarantor or other Mortgagor in connection with such Purchased Loan is the
legal, valid and binding obligation of the related Mortgagor, guarantor or other Mortgagor
(subject to any non-recourse provisions contained in any of the foregoing agreements and any
applicable state anti-deficiency, one action, or market value limit deficiency legislation),
as applicable, and is enforceable in accordance with its terms, except (i) as such
enforcement may be limited by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting the enforcement of creditors’
rights generally and (b) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law) and (ii) that certain provisions in such
Purchased Loan Documents (including, without limitation, provisions requiring the payment of
default interest, late fees or prepayment/yield maintenance fees, charges and/or premiums)
are, or may be, further limited or rendered unenforceable by or under applicable law, but
(subject to the limitations set forth in clause (i) above) such limitations or
unenforceability will not render such Purchased Loan Documents invalid as a whole or
materially interfere with the mortgagee’s realization of the principal benefits and/or
security provided thereby (clauses (i) and (ii) collectively, the “Standard
Qualifications”).






Except as set forth in the immediately preceding sentences, there is no valid offset,
defense, counterclaim or right of rescission available to the related Mortgagor with respect
to any of the related Mortgage Notes, Mortgages or other Purchased Loan Documents,
including, without limitation, any such valid offset, defense, counterclaim or right based
on intentional fraud by Seller in connection with the origination of the Purchased Loan,
that would deny the mortgagee the principal benefits intended to be provided by the Mortgage
Note, Mortgage or other Purchased Loan Documents.




	3.	 	Mortgage Provisions. The Purchased Loan Documents for each Purchased Loan contain
provisions that 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 subject to the limitations set forth in the Standard Qualifications.






	4.	 	Mortgage Status; Waivers and Modifications. Since origination and except by written
instruments set forth in the related Purchased Loan File or as otherwise provided in the
related Purchased Loan documents (a) the material terms of such Mortgage, Mortgage Note,
Purchased Loan guaranty, participation agreement, if applicable, and related Purchased Loan
Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated
or rescinded in any respect that could be reasonably expected to have a material adverse
effect on such Purchased Loan; (b) no related Mortgaged Property or any portion thereof has
been released from the lien of the related Mortgage in any manner which materially interferes
with the security intended to be provided by such Mortgage or the use or operation of the
remaining portion of such Mortgaged Property; and (c) neither the related Mortgagor nor the
related guarantor has been released from its material obligations under the Purchased Loan or
participation agreement, if applicable. With respect to each Purchased Loan, except as
contained in a written document included in the Purchased Loan File, there have been no
modifications, amendments or waivers, that could be reasonably expected to have a material
adverse effect on such Purchased Loan consented to by Seller on or after the Purchase Date.






	5.	 	Lien; Valid Assignment. Subject to the Standard Qualifications, each assignment of
Mortgage and assignment of Assignment of Leases to the Buyer constitutes a legal, valid and
binding assignment to the Buyer. Each related Mortgage and Assignment of Leases is freely
assignable without the consent of the related Mortgagor. Each related Mortgage is a legal,
valid and enforceable first lien on the related Mortgagor’s fee or leasehold interest in the
Mortgaged Property in the principal amount of such Purchased Loan or allocated loan amount
(subject only to Permitted Encumbrances (as defined below) and the exceptions to paragraph (6)
(each such exception, a “Title Exception”)), except as the enforcement thereof may be
limited by the Standard Qualifications. Such Mortgaged Property (subject to and excepting
Permitted Encumbrances and the Title Exceptions) as of origination was, and as of the Purchase
Date, to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded
materialmen’s liens and other recorded encumbrances which are prior to or equal with the lien
of the related Mortgage, except those which are bonded over, escrowed for or insured against
by a lender’s title insurance policy (as described below), and, to the Seller’s knowledge and
subject to the rights of tenants (as tenants only) (subject to and excepting Permitted
Encumbrances and the Title Exceptions), no rights exist which under law could give rise to any
such lien or encumbrance that would be prior to or equal with the lien of the related
Mortgage, except those which are bonded over, escrowed for or insured against by a lender’s
title insurance policy (as described below). Notwithstanding anything herein to the contrary,
no representation is made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items or actions other than
the filing of Uniform Commercial Code financing statements is required in order to effect such
perfection.






	6.	 	Permitted Liens; Title Insurance. Each Mortgaged Property securing a Purchased Loan
is covered by a Title Policy in the original principal amount of such Purchased Loan (or with
respect to a Purchased Loan secured by multiple properties, an amount equal to at least the
allocated loan amount with respect to the Title Policy for each such property) after all
advances of principal (including any advances held in escrow or reserves), that insures for
the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien
of the Mortgage, which lien is subject only to (a) the lien of current real property taxes,
water charges, sewer rents and assessments not yet due and payable; (b) covenants, conditions
and restrictions, rights of way, easements and other matters of public record; (c) the
exceptions (general and specific) and exclusions set forth in such Title Policy or appearing
of record; (d) other matters to which like properties are commonly subject; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the related
Mortgaged Property and condominium declarations; and (f) if the related Purchased Loan is
cross-collateralized and cross-defaulted with another Purchased Loan (each a “Crossed
Mortgage Loan”), the lien of the Mortgage for another Purchased Loan that is
cross-collateralized and cross-defaulted with such Crossed Mortgage Loan, provided that none
of which items (a) through (f), individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or the Mortgagor’s ability to pay its obligations when they become
due (collectively, the “Permitted Encumbrances”). Except as contemplated by
clause (f) of the preceding sentence, none of the Permitted Encumbrances are mortgage liens
that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such
Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and no claims have been made by the
Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the
Seller’s knowledge, any other holder of the Purchased Loan, has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.






	7.	 	Junior Liens. It being understood that B-notes secured by the same Mortgage as a
Purchased Loan are not subordinate mortgages or junior liens, except for any Crossed Mortgage
Loan, there are, as of origination, and to the Seller’s knowledge, as of the Purchase Date, no
subordinate mortgages or junior liens securing the payment of money encumbering the related
Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and
assessments, mechanics and materialmen’s liens (which are the subject of the representation in
paragraph (5) above), and equipment and other personal property financing). The Seller has no
knowledge of any mezzanine debt secured directly by interests in the related Mortgagor other
than as disclosed in the related Purchased Loan File.






	8.	 	Assignment of Leases. There exists as part of the related Purchased Loan File an
Assignment of Leases (either as a separate instrument or incorporated into the related
Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related
Assignment of Leases creates a valid first-priority collateral assignment of, or a valid
first-priority lien or security interest in, rents and certain rights under the related lease
or leases, subject only to a license granted to the related Mortgagor to exercise certain
rights and to perform certain obligations of the lessor under such lease or leases, including
the right to operate the related leased property, except as the enforcement thereof may be
limited by the Standard Qualifications. The related Mortgage or related Assignment of Leases,
subject to applicable law, provides that, upon an event of default under the Purchased Loan, a
receiver is permitted to be appointed for the collection of rents or for the related mortgagee
to enter into possession to collect the rents or for rents to be paid directly to the
mortgagee.






	9.	 	[Intentionally Omitted].






	10.	 	Condition of Property. Seller or the originator of the Purchased Loan inspected or
caused to be inspected each related Mortgaged Property within six months of origination of the
Purchased Loan and within twelve months of the Purchase Date.






An engineering report or property condition assessment was prepared in connection with the
origination of each Purchased Loan no more than twelve months prior to the Purchase Date.
To the Seller’s knowledge, based solely upon due diligence customarily performed in
connection with the origination of comparable mortgage loans, as of the Purchase Date, each
related Mortgaged Property was free and clear of any material damage (other than (i) any
damage or deficiency that is estimated to cost less than $50,000 to repair, (ii) any
deferred maintenance for which escrows were established at origination and (iii) any damage
fully covered by insurance) that would affect materially and adversely the use or value of
such Mortgaged Property as security for the Purchased Loan.




	11.	 	Taxes and Assessments. All real estate taxes, governmental assessments and other
similar outstanding governmental charges (including, without limitation, water and sewage
charges), or installments thereof, that could be a lien on the related Mortgaged Property that
would be of equal or superior priority to the lien of the Mortgage and that prior to the
Purchase Date have become delinquent in respect of each related Mortgaged Property have been
paid, or an escrow of funds has been established in an amount sufficient to cover such
payments and reasonably estimated interest and penalties, if any, thereon. For purposes of
this representation and warranty, real estate taxes and governmental assessments and other
outstanding governmental charges 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.






	12.	 	Condemnation. As of the date of origination and to the Seller’s knowledge as of the
Purchase Date, there is no proceeding pending, and, to the Seller’s knowledge as of the date
of origination and as of the Purchase Date, there is no proceeding threatened, for the total
or partial condemnation of such Mortgaged Property that would have a material adverse effect
on the value, use or operation of the Mortgaged Property.






	13.	 	Actions Concerning Purchased Loan. To the Seller’s knowledge, based on evaluation of
the Title Policy, an engineering report or property condition assessment as described in
paragraph (10), applicable local law compliance materials as described in paragraph (24),
reasonable and customary bankruptcy, civil records, UCC-1, and judgment searches of the
Mortgagors and guarantors, and the ESA, on and as of the date of origination and as of the
Purchase Date, there was no pending or filed action, suit or proceeding, involving any
Mortgagor, guarantor, or Mortgagor’s interest in the Mortgaged Property, an adverse outcome of
which would reasonably be expected to materially and adversely affect (a) such Mortgagor’s
title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such
Mortgagor’s ability to perform under the related Purchased Loan, (d) such guarantor’s ability
to perform under the related guaranty, (e) the principal benefit of the security intended to
be provided by the Purchased Loan Documents or (f) the current principal use of the Mortgaged
Property.






	14.	 	Escrow Deposits. All escrow deposits and payments required to be escrowed with
Mortgagee pursuant to each Purchased Loan are in the possession, or under the control, of the
Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith, and all such escrows and deposits (or the right thereto)
that are required to be escrowed with Mortgagee under the related Purchased Loan Documents are
being conveyed by the Seller to Buyer or its servicer.






	15.	 	No Holdbacks. The principal balance of the Purchased Loan stated in the Due
Diligence Package has been fully disbursed as of the Purchase Date and there is no requirement
for future advances thereunder (except in those cases where the full amount of the Purchased
Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or other matters
with respect to the related Mortgaged Property, the Mortgagor or other considerations
determined by Seller to merit such holdback).






	16.	 	Insurance. Each related Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by a property insurance policy providing coverage for loss in
accordance with coverage found under a “special cause of loss form” or “all risk form” that
includes replacement cost valuation issued by an insurer meeting the requirements of the
related Purchased Loan Documents and the Insurance Rating Requirements, in an amount (subject
to a customary deductible) not less than the lesser of (1) the original principal balance of
the Purchased Loan and (2) the full insurable value on a replacement cost basis of the
improvements, furniture, furnishings, fixtures and equipment owned by the Mortgagor and
included in the Mortgaged Property (with no deduction for physical depreciation), but, in any
event, not less than the amount necessary or containing such endorsements as are necessary to
avoid the operation of any coinsurance provisions with respect to the related Mortgaged
Property.






Each related Mortgaged Property is also covered, and required to be covered pursuant to the
related Purchased Loan Documents, by business interruption or rental loss insurance which
(subject to a customary deductible) covers a period of not less than twelve (12) months (or
with respect to each Purchased Loan on a single asset with a principal balance of
$50 million or more, eighteen (18) months).




If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged
Property is in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the related Mortgagor is required to
maintain insurance in the maximum amount available under the National Flood Insurance
Program.




If the Mortgaged Property is located within twenty-five (25) miles of the coast of the Gulf
of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the
related Mortgagor is required to maintain coverage for windstorm and/or windstorm related
perils and/or “named storms” issued by an insurer meeting the Insurance Rating Requirements
or endorsement covering damage from windstorm and/or windstorm related perils and/or named
storms.




The Mortgaged Property is covered, and required to be covered pursuant to the related
Purchased Loan Documents, by a commercial general liability insurance policy issued by an
insurer meeting the Insurance Rating Requirements including coverage for property damage,
contractual damage and personal injury (including bodily injury and death) in amounts as are
generally required by the Seller for loans originated for securitization, and in any event
not less than $1 million per occurrence and $2 million in the aggregate.




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 either the SEL or the
probable maximum loss (“PML”) for the Mortgaged Property in the event of an
earthquake. In such instance, the SEL or PML, as applicable, was based on a 475-year return
period, an exposure period of fifty (50) years and a 10% probability of exceedance. If the
resulting report concluded that the SEL or PML, as applicable, would exceed 20% of the
amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged
Property was obtained by an insurer meeting the Insurance Rating Requirements in an amount
not less than 100% of the SEL or PML, as applicable.




The Purchased Loan Documents require insurance proceeds in respect of a property loss to be
applied either (a) to the repair or restoration of all or part of the related Mortgaged
Property, with respect to all property losses in excess of 5% of the then outstanding
principal amount of the related Purchased Loan, the Mortgagee (or a trustee appointed by it)
having the right to hold and disburse such proceeds as the repair or restoration progresses,
or (b) to the reduction of the outstanding principal balance of such Purchased Loan together
with any accrued interest thereon.




All premiums on all insurance policies referred to in this section required to be paid as of
the Purchase Date have been paid, and such insurance policies name the Mortgagee under the
Purchased Loan and its successors and assigns as a loss payee under a mortgagee endorsement
clause or, in the case of the general liability insurance policy, as named or additional
insured. Such insurance policies will inure to the benefit of the Buyer. Each related
Purchased Loan obligates the related Mortgagor to maintain all such insurance and, at such
Mortgagor’s failure to do so, authorizes the Mortgagee to maintain such insurance at the
Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such
insurance policies (other than commercial liability policies) require at least ten
(10) days’ prior notice to the Mortgagee of termination or cancellation arising because of
nonpayment of a premium and at least thirty (30) days’ prior notice to the Mortgagee of
termination or cancellation (or such lesser period, not less than ten (10) days, as may be
required by applicable law) arising for any reason other than non-payment of a premium and
no such notice has been received by Seller.




	17.	 	Access; Utilities; Separate Tax Lots. Each Mortgaged Property (a) is located on or
adjacent to a public road and has direct legal access to such road, or has access via an
irrevocable easement or irrevocable right of way permitting ingress and egress to/from a
public road, (b) is served by or has uninhibited access rights to public or private water and
sewer (or well and septic) and all required utilities, all of which are appropriate for the
current use of the Mortgaged Property, and (c) constitutes one or more separate tax parcels
which do not include any property which is not part of the Mortgaged Property or is subject to
an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain
cases, an application has been, or will be, made to the applicable governing authority for
creation of separate tax lots, in which case the Purchased Loan requires the Mortgagor to
escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged
Property is a part until the separate tax lots are created or the non-recourse carveout
guarantor under the Purchased Loan has indemnified the mortgagee for any loss suffered in
connection therewith.






	18.	 	No Encroachments. To Seller’s knowledge based solely on surveys obtained in
connection with origination (which may have been a previously existing “as built” survey) and
the lender’s Title Policy (or, if such policy is not yet issued, a pro forma title policy, a
preliminary title policy with escrow instructions or a “marked up” commitment) obtained in
connection with the origination of each Purchased Loan, all material 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 Loan are within the boundaries of the related
Mortgaged Property, except encroachments that do not materially and adversely affect the value
or current use of such Mortgaged Property or for which insurance or endorsements were obtained
under the Title Policy. No improvements on adjoining parcels encroach onto the related
Mortgaged Property except for encroachments that do not materially and adversely affect the
value or current use of such Mortgaged Property or for which insurance or endorsements were
obtained under the Title Policy. No material improvements encroach upon any easements except
for encroachments the removal of which would not materially and adversely affect the value or
current use of such Mortgaged Property or for which insurance or endorsements have been
obtained under the Title Policy.






	19.	 	No Contingent Interest or Equity Participation. No Purchased Loan has a shared
appreciation feature, any other contingent interest feature or a negative amortization feature
or an equity participation by Seller (except that a loan may provide for the accrual of the
portion of interest in excess of the rate in effect prior to its related anticipated repayment
date).






	20.	 	[Intentionally Omitted].






	21.	 	Compliance with Usury Laws. The interest rate (exclusive of any default interest,
late charges, yield maintenance charges, exit fees, or prepayment premiums) of such Purchased
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.






	22.	 	Authorized to do Business. To the extent required under applicable law, as of the
Purchase Date and as of each date that Seller held the Mortgage Note, Seller was authorized to
transact and do business in the jurisdiction in which each related Mortgaged Property is
located, or the failure to be so authorized does not materially and adversely affect the
enforceability of such Purchased Loan by the Buyer.






	23.	 	Trustee under Deed of Trust. With respect to each Mortgage which is a deed of trust,
as of the date of origination and, to the Seller’s knowledge, as of the Purchase Date, 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 the Mortgage and
applicable law or may be substituted in accordance with the Mortgage and applicable law by the
related mortgagee.






	24.	 	Local Law Compliance. To the Seller’s knowledge, based upon any of a letter from any
governmental authorities, a legal opinion, an architect’s letter, a zoning consultant’s
report, an endorsement to the related Title Policy, or other affirmative investigation of
local law compliance consistent with the investigation conducted by the Seller for similar
commercial, multifamily and manufactured housing community mortgage loans intended for
securitization, with respect to the improvements located on or forming part of each Mortgaged
Property securing a Purchased Loan as of the date of origination of such Purchased Loan and as
of the Purchase Date, there are no material violations of applicable Zoning Regulations other
than those which (i) constitute a legal non-conforming use or structure, as to which the
Mortgaged Property may be restored or repaired to the full extent necessary to maintain the
use of the structure immediately prior to a casualty or the inability to restore or repair to
the full extent necessary to maintain the use or structure immediately prior to the casualty
would not materially and adversely affect the use or operation of the Mortgaged Property,
(ii) are insured by the Title Policy or other insurance policy, (iii) are insured by law and
ordinance insurance coverage in amounts customarily required by the Seller for loans
originated for securitization that provides coverage for additional costs to rebuild and/or
repair the property to current Zoning Regulations or (iv) would not have a material adverse
effect on the Purchased Loan. The terms of the Purchased Loan Documents require the Mortgagor
to comply in all material respects with all applicable governmental regulations, zoning and
building laws.






	25.	 	Licenses and Permits. Each Mortgagor covenants in the Purchased Loan Documents that
it shall keep all material licenses, permits and applicable governmental authorizations
necessary for its operation of the Mortgaged Property in full force and effect, and to the
Seller’s knowledge based upon a letter from any government authorities or other affirmative
investigation of local law compliance consistent with the investigation conducted by the
Seller for similar commercial, multifamily and manufactured housing community mortgage loans
intended for securitization, all such material licenses, permits and applicable governmental
authorizations are in effect. The Purchased Loan requires the related Mortgagor to be
qualified to do business in the jurisdiction in which the related Mortgaged Property is
located.






	26.	 	Recourse Obligations. The Purchased Loan Documents for each Purchased Loan provide
that such Purchased Loan is non-recourse to the related parties thereto except that (a) the
related Mortgagor and at least one individual or entity shall be fully liable for actual
losses, liabilities, costs and damages arising from certain acts of the related Mortgagor
and/or its principals specified in the related Purchased Loan Documents, which acts generally
include the following: (i) acts of fraud or intentional material misrepresentation,
(ii) misappropriation of rents after the occurrence of an event of default under the
Purchased Loan, insurance proceeds or condemnation awards, (iii) intentional material physical
waste of the Mortgaged Property (but, in some cases, only to the extent there is sufficient
cash flow generated by the related Mortgaged Property to prevent such waste), and (iv) any
breach of the environmental covenants contained in the related Purchased Loan Documents, and
(b) the Purchased Loan shall become full recourse to the related Mortgagor and at least one
individual or entity, upon the occurrence of certain events or acts specified in the related
Purchased Loan Documents, including the filing by the related Mortgagor of a voluntary
petition under federal or state bankruptcy or insolvency law.






	27.	 	Mortgage Releases. The terms of the related Mortgage or related Purchased Loan
Documents do not provide for release of any material portion of the Mortgaged Property from
the lien of the Mortgage except (a) a partial release, accompanied by principal repayment of
not less than a specified percentage at least equal to the lesser of (i) 110% of the related
allocated loan amount of such portion of the Mortgaged Property and (ii) the outstanding
principal balance of the Purchased Loan, (b) upon payment in full of such Purchased Loan,
(c) releases of out-parcels that are unimproved or other portions of the Mortgaged Property
which will not have a material adverse effect on the underwritten value of the Mortgaged
Property and which were not afforded any material value in the appraisal obtained at the
origination of the Purchased Loan and are not necessary for physical access to the Mortgaged
Property or compliance with zoning requirements, or (d) as required pursuant to an order of
condemnation.






	28.	 	Financial Reporting and Rent Rolls. The Purchased Loan Documents for each Purchased
Loan require the Mortgagor to provide the owner or holder of the Mortgage with quarterly
(other than for single-tenant properties) and annual operating statements, and quarterly
(other than for single-tenant properties) rent rolls for properties that have leases
contributing more than 5% of the in-place base rent and annual financial statements, which
annual financial statements with respect to each Purchased Loan with more than one Mortgagor
are in the form of an annual combined balance sheet of the Mortgagor entities (and no other
entities), together with the related combined statements of operations, members’ capital and
cash flows, including a combining balance sheet and statement of income for the Mortgaged
Properties on a combined basis.






	29.	 	Acts of Terrorism Exclusion. With respect to each Purchased Loan over $20 million,
the related special-form all-risk insurance policy and business interruption policy (issued by
an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of
Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered
by a separate terrorism insurance policy. With respect to each other Purchased Loan, the
related special-form all-risk insurance policy and business interruption policy (issued by an
insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of
the Purchased Loan, and, to Seller’s knowledge, do not, as of the Purchase Date, specifically
exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded,
it is covered by a separate terrorism insurance policy. With respect to each Purchased Loan,
the related Purchased Loan Documents do not expressly waive or prohibit the mortgagee from
requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto
except to the extent that any right to require such coverage may be limited by commercial
availability on commercially reasonable terms; provided, however, that if TRIA
or a similar or subsequent statute is not in effect, then, provided that terrorism insurance
is commercially available, the Mortgagor under each Purchased Loan is required to carry
terrorism insurance, but in such event the Mortgagor shall not be required to spend on
terrorism insurance coverage more than two times the amount of the insurance premium that is
payable in respect of the property and business interruption/rental loss insurance required
under the related Purchased Loan Documents (without giving effect to the cost of terrorism and
earthquake components of such casualty and business interruption/rental loss insurance) at the
time of the origination of the Purchased Loan, and if the cost of terrorism insurance exceeds
such amount, the Mortgagor is required to purchase the maximum amount of terrorism insurance
available with funds equal to such amount.






	30.	 	Due on Sale or Encumbrance. Subject to specific exceptions set forth below, each
Purchased Loan contains a “due on sale” or other such provision for the acceleration of the
payment of the unpaid principal balance of such Purchased Loan if, without the consent of the
holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or
complying with the requirements of the related Purchased Loan Documents (which provide for
transfers without the consent of the Mortgagee which are customarily acceptable to the Seller
lending on the security of property comparable to the related Mortgaged Property, including,
without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment
promptly replaced with property of equivalent value and functionality and transfers by leases
entered into in accordance with the Purchased Loan Documents), (a) the related Mortgaged
Property, or any equity interest of greater than 50% in the related Mortgagor, is directly or
indirectly pledged, transferred or sold, other than as related to (i) family and estate
planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain
affiliates as defined in the related Purchased Loan Documents, (iii) transfers that do not
result in a change of Control of the related Mortgagor or transfers of passive interests so
long as the guarantor retains Control, (iv) transfers to another holder of direct or indirect
equity in the Mortgagor, a specific Person designated in the related Purchased Loan Documents
or a Person satisfying specific criteria identified in the related Purchased Loan Documents,
such as a qualified equityholder, (v) transfers of stock or similar equity units in publicly
traded companies or (vi) a substitution or release of collateral within the parameters of
paragraph (27) herein, or (vii) by reason of any mezzanine debt that existed at the
origination of the related Purchased Loan, or (b) the related Mortgaged Property is encumbered
with a subordinate lien or security interest against the related Mortgaged Property, other
than (i) any subordinate debt that existed at origination and is permitted under the related
Purchased Loan Documents, (ii) purchase money security interests, (iii) any Crossed Mortgage
Loan or (iv) Permitted Encumbrances. The Mortgage or other Purchased Loan Documents provide
that to the extent any rating agency fees are incurred in connection with the review of and
consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along
with all other reasonable fees and expenses incurred by the Mortgagee relative to such
transfer or encumbrance. For purposes of the foregoing representation, “Control” means the
power to direct the management and policies of an entity, directly or indirectly, whether
through the ownership of voting securities or other beneficial interests, by contract or
otherwise.






	31.	 	Single-Purpose Entity. Each Purchased Loan requires the Mortgagor to be a
Single-Purpose Entity for at least as long as the Purchased Loan is outstanding. Both the
Purchased Loan Documents and the organizational documents of the Mortgagor with respect to
each Purchased Loan with an outstanding principal balance in excess of $5 million provide that
the Mortgagor is a Single-Purpose Entity, and each Purchased Loan with an outstanding
principal balance of $20 million or more has a counsel’s opinion regarding non-consolidation
of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity,
other than an individual, whose organizational documents (or if the Purchased Loan has an
outstanding principal balance equal to $5 million or less, its organizational documents or the
related Purchased Loan Documents) provide substantially to the effect that it was formed or
organized solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Purchased Loans and prohibit it from engaging in any business
unrelated to such Mortgaged Property or Properties, and whose organizational documents further
provide, or which entity represented in the related Purchased Loan Documents, substantially to
the effect that it does not have any assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Purchased Loan Documents, that it
has its own books and records and accounts separate and apart from those of any other person
(other than an Mortgagor for a Crossed Mortgage Loan), and that it holds itself out as a legal
entity, separate and apart from any other person or entity.






	32.	 	[Intentionally Omitted].






	33.	 	Floating Interest Rates. The interest rate of each Purchased Loan that bears
interest at a floating rate of interest is based on LIBOR plus a margin (which interest rate
may be subject to a minimum or “floor” rate). For this purpose, “LIBOR” shall mean
(a) the offered rate for deposits in U.S. dollars for a period equal to thirty (30) days,
which appears on the display designated as “BBAM” on Bloomberg (or such other display as may
replace “BBAM” on Bloomberg), or any successor thereto, as the London Interbank Offering Rate
as of 8:00 a.m., New York City time, on the applicable determination date or (b) if such rate
does not appear on said “BBAM” display, then the arithmetic mean (rounded as aforesaid) of
certain offered quotations of rates to prime banks in the London interbank market as of
approximately 11:00 a.m., London time, in an amount that is representative for a single
transaction in the relevant market at the relevant time.






	34.	 	Ground Leases. With respect to any Purchased Loan where the Purchased Loan is
secured by a leasehold estate under a Ground Lease in whole or in part, and the related
Mortgage does not also encumber the related lessor’s fee interest in such Mortgaged Property,
based upon the terms of the Ground Lease and any estoppel or other agreement received from the
ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants
that:






	 	(a)	 	The Ground Lease or a memorandum regarding such Ground Lease has been duly
recorded or submitted for recordation in a form that is acceptable for recording in the
applicable jurisdiction. The Ground Lease or an estoppel or other agreement received
from the ground lessor permits the interest of the lessee to 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 adversely
affect the security provided by the related Mortgage;






	 	(b)	 	The lessor under such Ground Lease has agreed in a writing included in the
related Purchased Loan File (or in such Ground Lease) that the Ground Lease may not be
amended or modified, or canceled or terminated by agreement of lessor and lessee,
without the prior written consent of the Mortgagee (except termination or cancellation
if (i) notice of a default under the Ground Lease is provided to Mortgagee and
(ii) such default is curable by Mortgagee as provided in the Ground Lease but remains
uncured beyond the applicable cure period), and no such consent has been granted by the
Seller since the origination of the Purchased Loan except as reflected in any written
instruments which are included in the related Purchased Loan File;






	 	(c)	 	The Ground Lease has an original term (or an original term plus one or more
optional renewal terms, which, under all circumstances, may be exercised, and will be
enforceable, by either Mortgagor or the mortgagee) that extends not less than twenty
(20) years beyond the stated maturity of the related Purchased Loan, or ten (10) years
past the stated maturity if such Purchased Loan fully amortizes by the stated maturity
(or with respect to a Purchased Loan that accrues on an actual 360 basis, substantially
amortizes);






	 	(d)	 	The Ground Lease either (i) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, except for the related fee
interest of the ground lessor and the Permitted Encumbrances, or (ii) is subject to a
subordination, non-disturbance and attornment agreement to which the mortgagee on the
lessor’s fee interest in the Mortgaged Property is subject;






	 	(e)	 	The Ground Lease does not place commercially unreasonable restrictions on the
identity of the Mortgagee and the Ground Lease is assignable to the holder of the
Purchased Loan and its successors and assigns without the consent of the lessor
thereunder, and in the event it is so assigned, it is further assignable by the holder
of the Purchased Loan and its successors and assigns without the consent of the lessor;






	 	(f)	 	The Seller has not received any written notice of material default under or
notice of termination of such Ground Lease. To the Seller’s knowledge, there is no
material default under such Ground Lease and no condition that, but for the passage of
time or giving of notice, would result in a material default under the terms of such
Ground Lease and to the Seller’s knowledge, such Ground Lease is in full force and
effect as of the Purchase Date;






	 	(g)	 	The Ground Lease or ancillary agreement between the lessor and the lessee
requires the lessor to give to the Mortgagee written notice of any default, and
provides that no notice of default or termination is effective against the Mortgagee
unless such notice is given to the Mortgagee;






	 	(h)	 	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
through legal proceedings) to cure any default under the Ground Lease which is curable
after the Mortgagee’s receipt of notice of any default before the lessor may terminate
the Ground Lease;






	 	(i)	 	The Ground Lease does not impose any restrictions on subletting that would be
viewed as commercially unreasonable by the Seller in connection with loans originated
for securitization;






	 	(j)	 	Under the terms of the Ground Lease, an estoppel or other agreement received
from the ground lessor and the related Mortgage (taken together), any related insurance
proceeds or the portion of the condemnation award allocable to the ground lessee’s
interest (other than (i) de minimis amounts for minor casualties or (ii) in respect of
a total or substantially total loss or taking as addressed in clause (k) below) will be
applied either to the repair or to restoration of all or part of the related Mortgaged
Property with (so long as such proceeds are in excess of the threshold amount specified
in the related Purchased Loan Documents) 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 of the outstanding principal balance of the Purchased
Loan, together with any accrued interest;






	 	(k)	 	In the case of a total or substantially total taking or loss, under the terms
of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken
together), any related insurance proceeds, or portion of the condemnation award
allocable to ground lessee’s interest in respect of a total or substantially total loss
or taking of the related Mortgaged Property to the extent not applied to restoration,
will be applied first to the payment of the outstanding principal balance of the
Purchased Loan, together with any accrued interest; and






	 	(l)	 	Provided that the Mortgagee cures any defaults which are susceptible to being
cured, the ground lessor has agreed to enter into a new lease with Mortgagee upon
termination of the Ground Lease for any reason, including rejection of the Ground Lease
in a bankruptcy proceeding.






	35.	 	Servicing. The servicing and collection practices used by the Seller with respect to
the Purchased Loan have been, in all material respects, legal and have met customary industry
standards for servicing of similar commercial loans.






	36.	 	Origination and Underwriting. The origination practices of the Seller (or the
related originator if the Seller was not the originator) with respect to each Purchased Loan
have been, in all material respects, legal and as of the date of its origination, such
Purchased Loan and the origination thereof complied in all material respects with, or was
exempt from, all requirements of federal, state or local law relating to the origination of
such Purchased Loan.






	37.	 	No Material Default; Payment Record. No Purchased Loan has been more than thirty
(30) days delinquent, without giving effect to any grace or cure period, in making required
payments since origination, and as of the date hereof, no Purchased Loan is more than thirty
(30) days delinquent (beyond any applicable grace or cure period) in making required payments
as of the Purchase Date. To the Seller’s knowledge, there is (a) no material default, breach,
violation or event of acceleration existing under the related Purchased Loan, or (b) no event
(other than payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a material default,
breach, violation or event of acceleration, which default, breach, violation or event of
acceleration, in the case of either clause (a) or clause (b), materially and adversely affects
the value of the Purchased Loan or the value, use or operation of the related Mortgaged
Property. No person other than the holder of such Purchased Loan may declare any event of
default under the Purchased Loan or accelerate any indebtedness under the Purchased Loan
Documents.






	38.	 	Bankruptcy. As of the date of origination of the related Purchased Loan and to the
Seller’s knowledge as of the Purchase Date, no Mortgagor, guarantor or tenant occupying a
single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar
proceeding.






	39.	 	Organization of Mortgagor. With respect to each Purchased Loan, in reliance on
certified copies of the organizational documents of the Mortgagor delivered by the Mortgagor
in connection with the origination of such Purchased Loan, the 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. Except with respect to any Crossed Mortgage Loan, no
Purchased Loan has an Mortgagor that is an Affiliate of another Mortgagor. (An
“Affiliate” for purposes of this paragraph (39) means an Mortgagor that is under
direct or indirect common ownership and control with another Mortgagor.)






	40.	 	Environmental Conditions. An ESA meeting ASTM requirements was conducted by a
reputable environmental consultant in connection with such Purchased Loan within 12 months
prior to its origination date (or an update of a previous ESA was prepared), and such ESA
either (i) did not identify the existence of Environmental Conditions at the related Mortgaged
Property or the need for further investigation with respect to any Environmental Condition
that was identified, or (ii) if the existence of an Environmental Condition or need for
further investigation was indicated in any such ESA, then at least one of the following
statements is true: (A) an amount reasonably estimated by a reputable environmental
consultant to be sufficient to cover the estimated cost to cure any material noncompliance
with applicable environmental laws or the Environmental Condition has been escrowed by the
related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only
Environmental Condition relates to the presence of asbestos-containing materials, radon in
indoor air, lead based paint or lead in drinking water, and the only recommended action in the
ESA is the institution of such a plan, an operations or maintenance plan has been required to
be instituted by the related Mortgagor that can reasonably be expected to mitigate the
identified risk; (C) the Environmental Condition identified in the related environmental
report was remediated or abated in all material respects prior to the date hereof, and, if and
as appropriate, a no further action or closure letter was obtained from the applicable
governmental regulatory authority (or the Environmental Condition affecting the related
Mortgaged Property was otherwise listed by such governmental authority as “closed” or a
reputable environmental consultant has concluded that no further action is required); (D) a
secured creditor environmental policy or a pollution legal liability insurance policy that
covers liability for the Environmental Condition was obtained from an insurer meeting the
Insurance Rating Requirements; (E) a party not related to the Mortgagor was identified as the
responsible party for such Environmental Condition and such responsible party has financial
resources reasonably estimated to be adequate to address the situation; or (F) a party related
to the Mortgagor having financial resources reasonably estimated to be adequate to address the
situation is required to take action. To Seller’s knowledge, except as set forth in the ESA,
there is no Environmental Condition at the related Mortgaged Property.






	41.	 	Appraisal. The Purchased Loan File contains an appraisal of the related Mortgaged
Property with an appraisal date within six (6) months of the Purchased Loan origination date,
and within twelve (12) months of the Purchase Date. The appraisal is signed by an appraiser
who is either a MAI and/or has been licensed and certified to prepare appraisals in the state
where the Mortgaged Property is located. Each appraiser has represented in such appraisal or
in a supplemental letter that the appraisal satisfies the requirements of the “Uniform
Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of
the Appraisal Foundation and has certified that such appraiser had no interest, direct or
indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security
thereof, and its compensation is not affected by the approval or disapproval of the Purchased
Loan. Each appraisal contains a statement, or is accompanied by a letter from the appraiser,
to the effect that the appraisal was performed in accordance with the requirements of FIRREA,
as in effect on the date such Purchased Loan was originated.






	42.	 	Due Diligence Package. The information pertaining to each Purchased Loan which is
set forth in the Due Diligence Package is true and correct in all material respects as of the
Purchase Date.






	43.	 	Cross-Collateralization. Each Purchased Loan that is cross-collateralized or
cross-defaulted is cross-collateralized or cross-defaulted only with other Purchased Loans
that are subject to Transactions under this Agreement.






	44.	 	Advance of Funds by the Seller. After origination, no advance of funds has been made
by Seller to the related Mortgagor other than in accordance with the Purchased Loan Documents,
and, to Seller’s knowledge, no funds have been received from any person other than the related
Mortgagor or an affiliate for, or on account of, payments due on the Purchased Loan (other
than as contemplated by the Purchased Loan Documents, such as, by way of example and not in
limitation of the foregoing, amounts paid by the tenant(s) into a Mortgagee-controlled lockbox
if required or contemplated under the related lease or Purchased Loan Documents). Neither
Seller nor any affiliate thereof has any obligation to make any capital contribution to any
Mortgagor under a Purchased Loan, other than contributions made on or prior to the date
hereof.






	45.	 	Compliance with Anti-Money Laundering Laws. Seller has complied in all material
respects with all applicable anti-money laundering laws and regulations, including without
limitation the USA Patriot Act of 2001 with respect to the origination of the Purchased Loan,
the failure to comply with which would have a material adverse effect on the Purchased Loan.





For purposes of these representations and warranties, “Mortgagee” shall mean the mortgagee,
grantee or beneficiary under any Mortgage, any holder of legal title to any portion of any
Purchased Loan or, if applicable, any agent or servicer on behalf of such party.

 


For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the

Seller’s belief” and other words and phrases of like import shall mean, except where otherwise

expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and

employees directly responsible for the underwriting, origination, servicing or sale of the

Purchased Loans regarding the matters expressly set forth herein.EXHIBIT VII




COLLATERAL TAPE




	 
	Control Number

	 

	Loan Number

	 

	Loan / Property Flag

	 

	Number of Properties

	 

	Seller

	 

	Property Name

	 

	Street Address

	 

	City

	 

	State

	 

	County

	 

	Zip Code

	 

	Property Type

	 

	Property Type Detail

	 

	Year Built

	 

	Year Renovated

	 

	Number of Units

	 

	Unit Description

	 

	Loan per Unit

	 

	Original Balance

	 

	Cut-off Date Balance as of [7/6/2011]

	 

	Allocated Cut-off Date Balance (multi-property)

	 

	% of Initial Pool Balance

	 

	Pari Passu Split (Y/N)

	 

	Interest Rate

	 

	Administrative Fee

	 

	Monthly Payment

	 

	Annual Debt Service

	 

	Interest Accrual Method

	 

	Origination Date

	 

	First Payment Date

	 

	Last IO Payment Date

	 

	First P&I Payment Date

	 

	Payment Date

	 

	Grace Days — Late Fee

	 

	Grace Days — Default

	 

	Amort Type

	 

	Original Interest Only Term

	 

	Remaining Interest Only Term

	 

	Original Loan Term

	 

	Remaining Loan Term

	 

	Original Amortization Term

	 

	Remaining Amortization Term

	 

	Seasoning

	 

	Maturity Date

	 

	Hyper Amortizing Loan

	 

	Hyper Am Loan Maturity Date

	 

	Balloon Balance

	 

	Lockbox

	 

	Cash Management

	 

	Cross Collateralized (Y/N)

	 

	Cross Collateralized Group

	 

	Lockout Period

	 

	Lockout Expiration Date

	 

	Prepayment / Defeasance Begin Date

	 

	Prepayment / Defeasance End Date

	 

	Open Period Begin Date

	 

	Open Period

	 

	Prepayment Type

	 

	Prepay Description

	 

	YM Index

	 

	YM Discount

	 

	YM Margin

	 

	YM Calculation Method

	 

	Day Prepayment Permitted

	 

	Due On Sale

	 

	Due on Encumbrance

	 

	B Note Original Amount

	 

	B Note Cut-Off Date Balance

	 

	B Note Interest Rate

	 

	B Note Annual Payment

	 

	B Note Maturity Date

	 

	Whole Loan Original Balance

	 

	Whole Loan Cut-Off Date Balance

	 

	Whole Loan Interest Rate

	 

	Whole Loan Annual Payment

	 

	Whole Loan LTV

	 

	Whole Loan DSCR

	 

	Name of Mezzanine Lender

	 

	Mezzanine Debt Original Amount

	 

	Mezzanine Debt Cut-Off Date Balance

	 

	Mezzanine Debt Interest Rate

	 

	Mezzanine Debt Annual Payment

	 

	Mezzanine Debt Maturity Date

	 

	Total Loan Original Balance

	 

	Total Loan Cut-Off Date Balance

	 

	Total Loan Interest Rate

	 

	Total Loan Annual Payment

	 

	Total Loan LTV

	 

	Total Loan DSCR

	 

	Other Subordinate Debt Balance

	 

	Other Subordinate Debt Type

	 

	Future Debt Allowed?

	 

	Assumable?

	 

	Assumption Fee

	 

	Appraiser Designation

	 

	Appraisal FIRREA (Y/N)

	 

	Appraisal Date

	 

	Appraisal Value

	 

	Stabilized Appraisal Date

	 

	Stabilized Appraised Value

	 

	Cut-off Date LTV

	 

	Scheduled Maturity Date LTV

	 

	Occupancy %

	 

	Occupancy As of Date

	 

	Largest Tenant (Based on Square Footage)

	 

	Largest Tenant Sq. Ft.

	 

	Largest Tenant Lease Expiration

	 

	Second Largest Tenant

	 

	Second Largest Tenant Sq. Ft.

	 

	Second Largest Tenant Lease Expiration

	 

	Third Largest Tenant

	 

	Third Largest Tenant Sq. Ft.

	 

	Third Largest Tenant Lease Expiration

	 

	Fourth Largest Tenant

	 

	Fourth Largest Tenant Sq. Ft.

	 

	Fourth Largest Tenant Lease Expiration

	 

	Fifth Largest Tenant

	 

	Fifth Largest Tenant Sq. Ft.

	 

	Fifth Largest Tenant Lease Expiration

	 

	Single Tenant (Y/N)

	 

	Engineering Report Date

	 

	Phase I Date

	 

	Phase II Performed (Y/N)

	 

	Phase II Date

	 

	SEL %

	 

	Seismic Report Date

	 

	Earthquake Insurance Required (Y/N)

	 

	Terrorism Insurance Required (Y/N)

	 

	Lien Position

	 

	Ownership Interest

	 

	Ground Lease (Y/N)

	 

	Ground Lease Payment (Annual)

	 

	Ground Lease Expiration Date

	 

	Ground Lease Extension (Y/N)

	 

	# of Ground Lease Extension Options

	 

	Ground Lease Expiration Date with Extension

	 

	2008 NOI Date

	 

	2008 NOI

	 

	2008 NCF

	 

	2008 NCF DSCR

	 

	2009 NOI Date

	 

	2009 NOI

	 

	2009 NCF

	 

	2009 NCF DSCR

	 

	2010 NOI Date

	 

	2010 NOI

	 

	2010 NCF

	 

	2010 NCF DSCR

	 

	Partial Year Date (if past 2010)

	 

	Partial Year # of months

	 

	Partial Year Description

	 

	Partial Year NOI

	 

	Partial Year NCF

	 

	Partial Year NCF DSCR

	 

	Underwritten Revenue

	 

	Underwritten Expenses

	 

	Underwritten NOI

	 

	Underwritten NOI DSCR

	 

	Debt Yield on Underwritten NOI

	 

	Underwritten Replacement Reserve

	 

	Underwritten TI/LC Reserve

	 

	Underwritten Other Reserve

	 

	Underwritten NCF

	 

	Underwritten NCF DSCR

	 

	Debt Yield on Underwritten NCF

	 

	Upfront RE Tax Reserve

	 

	Ongoing RE Tax Reserve

	 

	Upfront Insurance Reserve

	 

	Ongoing Insurance Reserve

	 

	Upfront Replacement Reserve

	 

	Ongoing Replacement Reserve

	 

	Replacement Reserve Caps

	 

	Upfront TI/LC Reserve

	 

	Ongoing TI/LC Reserve

	 

	TI/LC Caps

	 

	Upfront Debt Service Reserve

	 

	Ongoing Debt Service Reserve

	 

	Upfront Deferred Maintenance Reserve

	 

	Ongoing Deferred Maintenance Reserve

	 

	Upfront Environmental Reserve

	 

	Ongoing Environmental Reserve

	 

	Upfront Other Reserve

	 

	Ongoing Other Reserve

	 

	Other Reserve Detail / Description

	 

	Letter of Credit?

	 

	LOC Balance

	 

	Letter of Credit Description

	 

	Release Provisions (Y/N)

	 

	Loan Purpose

	 

	If Acquisition, Purchase Price

	 

	Borrower Name

	 

	Principal / Sponsor

	 

	Recourse

	 

	Related Sponsor

	 

	Borrower SPE (Y/N)

	 

	Property Manager

	 

	Franchise Flag (Hotel Only)

	 

	Utilities Paid by Tenant

	 

	# of Studios

	 

	Studio Avg. Rents

	 

	# of One Bedroom Units

	 

	One Bedroom Avg. Rents

	 

	# of Two Bedroom Units

	 

	Two Bedroom Avg. Rents

	 

	# of Three Bedroom Units

	 

	Three Bedroom Avg. Rents

	 

	# of Four Bedroom Units

	 

	Four Bedroom Avg. Rents

	 

	# of Five Bedroom Units

	 

	Five Bedroom Avg. Rents

	 

	Elevators (Y/N)

	 

	Section 42 Units? (Y/N)

	 

	Section 8 Units? (Y/N)

	 

	Student / Military / Other Concentration? (Y/N)

	 

	# of Sponsor Owned Units that are Rented or Available for Rent

	 

	Sponsor Owned Units Avg. Rent

	 

	# of Owner Occupied or Vacant Units Not Available For Rent

	 

	# of Manufactured Housing Pads

	 

	Average Rent Per Pad

	 

	Total Gross Income of Park

	 

	Total Gross Income of MH Pads Only

	 

	Total Gross Income From All Sources

	 

	Total Gross Income Retail and Commercial Only

	 

	Loan Group

	 

	ADR

	 

	RevPar

	 







EXHIBIT VIII




FORM OF TRANSACTION REQUEST




Ladies and Gentlemen:



Pursuant to Section 3(a) of that certain Amended and Restated Master Repurchase Agreement,
dated as of July 28, 2014 (the “Agreement”), between Citibank, N.A. (“Buyer”) RAIT
CMBS Conduit I, LLC (“Conduit I Seller”) and RAIT CRE Conduit III, LLC (“Conduit III
Seller”, and together with Conduit I Seller, collectively, “Seller”), [Seller] hereby
requests that Buyer enter into a Transaction with respect to the Eligible Loans set forth on
Schedule 1 attached hereto, upon the proposed terms set forth below. Capitalized terms used herein
without definition have the meanings given in the Agreement.



	 	 	 
	Proposed Eligible Loan:

	 	[      ]
	Aggregate Principal Amount of Proposed Eligible Loan:

	 	[      ]






4




	 	 	 	 	 
	Name and address for	 	Buyer:

	communications:	 	—
Citibank, N.A.
388 Greenwich Street
New York, New York 10013
Attention: Richard Schlenger
Telephone: (212) 816-7806
Telecopy: (212) 816-8307
with a copy to:

	 	 	 	 	Sidley Austin llp
787 Seventh Avenue
New York, New York 10019
Attention: Brian Krisberg, Esq.
Telephone: (212) 839-8735
Telecopy: (212) 839-5599
Seller:

	 	 	 	 	 

	 	 	 	 	[RAIT CMBS Conduit I, LLC,
c/o RAIT Financial Trust
450 Park Avenue
New York, NY 10022
Attention: Scott Davidson
Telephone: (212) 735-1490
Telecopy: (212) 735-1499]
[RAIT CRE Conduit III, LLC,
c/o RAIT Financial Trust
450 Park Avenue
New York, NY 10022
Attention: Scott Davidson
Telephone: (212) 735-1490
Telecopy: (212) 735-1499]

	 	 	 	 	with a copy to:

	 	 	 	 	RAIT Financial Trust
2929 Arch Street, 17th Floor
Philadelphia, PA 19104
Attention: Jamie Reyle, Esq., Corporate Counsel
Telephone: (215) 243-9019
Telecopy: (215) 405-2945
And, if the notice is being sent under Section 4(a),
with a copy to:

	 	 	 	 	RAIT Financial Trust
2929 Arch Street, 17th Floor
Philadelphia, PA 19104
Attention: James Sebra, Chief Accounting Officer
Telephone: (215) 243-9000
Telecopy: (215) 243-9097







5




	 
	SELLER:

	[RAIT CMBS CONDUIT I, LLC,

a Delaware limited liability company

By: RAIT Funding, LLC, a Delaware limited liability company, its sole Member

By: Taberna Realty Finance Trust, a Maryland real estate investment trust, its

sole Member

By:      

Name:

	Title: ]

[RAIT CRE CONDUIT III, LLC,

a Delaware limited liability company

By: RAIT Partnership, L.P., a Delaware limited partnership, its sole Member

By: RAIT General, Inc., a Maryland corporation, its general partner

By:      

Name:

	Title: ]







6




Schedule 1 to Transaction Request

(Attachments: Collateral Tape and Eligible Loan Due Diligence Checklist)




	 
	Eligible Loans:

	Aggregate Principal Amount of Eligible Loans: $[      ]







EXHIBIT IX




FORM OF IRREVOCABLE DIRECTION LETTER




[SELLER]




[LETTERHEAD]




IRREVOCABLE DIRECTION LETTER




AS OF [ ], 20[__]




Ladies and Gentlemen:



Please refer to: (a) that certain [Loan Agreement], dated [ ], 20[      ], by and among [ ] (the
“Borrower”), as borrower, and [RAIT CMBS Conduit I, LLC] [RAIT CRE Conduit III, LLC] (the
“Lender”), as lender; and (b) all documents securing or relating to that certain $[ ] loan
made by the Lender to the Borrower on [ ], 20[      ] (the “Loan”).



You are advised as follows, effective as of the date of this letter.



Assignment of the Loan. The Lender has entered into a Amended and Restated Master Repurchase
Agreement, dated as July 28, 2014 (as the same may be amended and/or restated from time to time,
the “Repo Agreement”), with Citibank, N.A. (“Citi”), 388 Greenwich Street, New York, New York
10013, and has assigned its rights and interests in the Loan (and all of its rights and remedies in
respect of the Loan) to Citi. This assignment shall remain in effect unless and until Citi has
notified Borrower otherwise in writing.



Direction of Funds. In connection with Lender’s obligations under the Repo Agreement, Lender
hereby directs Borrower to disburse, by wire transfer, any and all payments to be made under or in
respect of the Loan to the following account at [      ] for the benefit of Citi:



     


     


     


Account:      


Attn:       



This direction shall remain in effect unless and until Citi has notified Borrower otherwise in
writing.



Please acknowledge your acceptance of the terms and directions contained in this correspondence by
executing a counterpart of this correspondence and returning it to the undersigned.



[Signature Page Follows]





7







Very truly yours,



	 
	[RAIT CMBS CONDUIT I, LLC,

a Delaware limited liability company

By: RAIT Funding, LLC, a Delaware limited liability company, its sole Member

By: Taberna Realty Finance Trust, a Maryland real estate investment trust, its

sole Member

By:      

Name:

	Title: ]

[RAIT CRE CONDUIT III, LLC,

a Delaware limited liability company

By: RAIT Partnership, L.P., a Delaware limited partnership, its sole Member

By: RAIT General, Inc., a Maryland corporation, its general partner

By:      

Name:

	Title: ]







	 	 	 	 	 	 	 
	
 
	 	 	 	Date: [
	 	], 20[      ]
	Agreed and accepted this [ ]
	 	 	 	 
	day of [

[

	 	], 20[      ]

]
	 	



	 	









By:      

Name:       

Title:       





8