mm05-1210_8kae101.htm


    EXHIBIT
10.1

     

    


    EXECUTION
VERSION

     

    


     

    


     

    ASSET
PUT AGREEMENT

     

    BY
AND AMONG

     

    BERKADIA
III, LLC,

     

    CAPMARK
FINANCE INC.,

     

    CAPMARK
CAPITAL INC.

     

    and

     

    CAPMARK
FINANCIAL GROUP INC.

     

    and with
respect to Sections 2.5, 10.5, 10.7, 10.11, 10.16 and 10.17 only

     

    LEUCADIA
NATIONAL CORPORATION

     

    and

     

    BERKSHIRE
HATHAWAY INC.

     

    


     

     

    Dated
as of September 2, 2009

     

     

     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

     

    TABLE
OF CONTENTS


    
      	 	 	 Page
	 	 	 
	
              
ARTICLE I

            	
              DEFINITIONS

            	
              1

            
	
              SECTION
      1.1.

            	
              Definitions

            	
              1

            
	
              ARTICLE
      II

            	
              THE
      PUT, PURCHASE AND SALE

            	
              20

            
	
              SECTION
      2.1.

            	
              The
      Put Option

            	
              20

            
	
              SECTION
      2.2.

            	
              Purchase
      and Sale

            	
              20

            
	
              SECTION
      2.3.

            	
              Consideration

            	
              22

            
	
              SECTION
      2.4.

            	
              Adjustment
      Amount

            	
              23

            
	
              SECTION
      2.5.

            	
              Guaranty

            	
              25

            
	
              SECTION
      2.6.

            	
              Purchase
      Price Allocation

            	
              25

            
	
              ARTICLE
      III

            	
              REPRESENTATIONS
      AND WARRANTIES OF THE SELLERS

            	
              26

            
	
              SECTION
      3.1.

            	
              Organization
      and Qualification

            	
              26

            
	
              SECTION
      3.2.

            	
              Subsidiary

            	
              26

            
	
              SECTION
      3.3.

            	
              Authorization

            	
              27

            
	
              SECTION
      3.4.

            	
              No
      Violation

            	
              27

            
	
              SECTION
      3.5.

            	
              Consents
      and Approvals

            	
              28

            
	
              SECTION
      3.6.

            	
              Brokers’
      Fees and Commissions

            	
              28

            
	
              SECTION
      3.7.

            	
              Title
      to Acquired Assets; Sufficiency.

            	
              28

            
	
              SECTION
      3.8.

            	
              Contracts

            	
              30

            
	
              SECTION
      3.9.

            	
              Legal
      Proceedings

            	
              31

            
	
              SECTION
      3.10.

            	
              Intellectual
      Property

            	
              31

            
	
              SECTION
      3.11.

            	
              Real
      Property

            	
              31

            
	
              SECTION
      3.12.

            	
              Environmental
      Matters

            	
              32

            
	
              SECTION
      3.13.

            	
              Licenses;
      Compliance with Laws

            	
              33

            
	
              SECTION
      3.14.

            	
              Employee
      Benefit Plans

            	
              34

            
	
              SECTION
      3.15.

            	
              Labor
      Relations

            	
              35

            
	
              SECTION
      3.16.

            	
              Financial
      Matters

            	
              35

            
	
              SECTION
      3.17.

            	
              Taxes

            	
              35

            
	
              SECTION
      3.18.

            	
              Purchased
      and Serviced Loans

            	
              36

            
	
              SECTION
      3.19.

            	
              Servicing
      Agreements and Securitizations

            	
              39

            


    

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


          
            TABLE
OF CONTENTS

            (continued)


          

        

      

    

    


    


    
      	 	 	 Page
	 	 	 
	
              SECTION
      3.20.

            	
              Disclaimer
      of Other Representations and Warranties

            	
              40

            
	
              ARTICLE
      IV

            	
              REPRESENTATIONS
      AND WARRANTIES OF THE PURCHASER

            	
              40

            
	
              SECTION
      4.1.

            	
              Organization
      and Qualification

            	
              40

            
	
              SECTION
      4.2.

            	
              Authorization

            	
              40

            
	
              SECTION
      4.3.

            	
              No
      Violation

            	
              41

            
	
              SECTION
      4.4.

            	
              Consents
      and Approvals

            	
              41

            
	
              SECTION
      4.5.

            	
              Brokers’
      Fees and Commissions

            	
              41

            
	
              SECTION
      4.6.

            	
              Legal
      Proceedings

            	
              41

            
	
              SECTION
      4.7.

            	
              Purchase
      for Investment

            	
              42

            
	
              SECTION
      4.8.

            	
              Inspections;
      Limitation of Sellers Warranties

            	
              42

            
	
              SECTION
      4.9.

            	
              OFAC

            	
              42

            
	
              ARTICLE
      V

            	
              COVENANTS

            	
              42

            
	
              SECTION
      5.1.

            	
              Conduct
      of Business of the Sellers Prior to the Closing

            	
              42

            
	
              SECTION
      5.2.

            	
              Access
      to Information

            	
              46

            
	
              SECTION
      5.3.

            	
              All
      Reasonable Efforts

            	
              47

            
	
              SECTION
      5.4.

            	
              Consents
      and Approvals; Purchased Contracts

            	
              47

            
	
              SECTION
      5.5.

            	
              Public
      Announcements

            	
              51

            
	
              SECTION
      5.6.

            	
              Disclosure
      Supplements

            	
              52

            
	
              SECTION
      5.7.

            	
              Employee
      Benefit Matters.

            	
              52

            
	
              SECTION
      5.8.

            	
              Confidentiality

            	
              55

            
	
              SECTION
      5.9.

            	
              Control
      of Business

            	
              55

            
	
              SECTION
      5.10.

            	
              Non-Solicitation;
      Additional Confidentiality Provisions

            	
              55

            
	
              SECTION
      5.11.

            	
              Non-Competition

            	
              57

            
	
              SECTION
      5.12.

            	
              Tax
      Matters

            	
              57

            
	
              SECTION
      5.13.

            	
              Notice
      and Cure

            	
              58

            
	
              SECTION
      5.14.

            	
              Names
      and Mark; Name Changes.

            	
              58

            
	
              SECTION
      5.15.

            	
              Indian
      Subsidiary Net Worth

            	
              60

            
	
              SECTION
      5.16.

            	
              Capmark
      Bank Contracts

            	
              60

            


    

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


          
            TABLE
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      	 	 	 Page
	 	 	 
	
              SECTION
      5.17.

            	
              Further
      Assurances

            	
              60

            
	
              SECTION
      5.18.

            	
              Additional
      Post-Closing Covenants of the Sellers

            	
              60

            
	
              SECTION
      5.19.

            	
              Purchased
      Real Property Leases

            	
              60

            
	
              SECTION
      5.20.

            	
              Late
      Charges

            	
              60

            
	
              ARTICLE
      VI

            	
              CLOSING
      CONDITIONS

            	
              61

            
	
              SECTION
      6.1.

            	
              Conditions
      to the Obligations of the Purchaser Under this Agreement

            	
              61

            
	
              SECTION
      6.2.

            	
              Conditions
      to the Obligations of the Sellers under this Agreement

            	
              63

            
	
              ARTICLE
      VII

            	
              CLOSING

            	
              64

            
	
              SECTION
      7.1.

            	
              Closing

            	
              64

            
	
              ARTICLE
      VIII

            	
              INDEMNIFICATION

            	
              66

            
	
              SECTION
      8.1.

            	
              Indemnification

            	
              66

            
	
              ARTICLE
      IX

            	
              TERMINATION
      AND ABANDONMENT

            	
              70

            
	
              SECTION
      9.1.

            	
              Termination

            	
              70

            
	
              SECTION
      9.2.

            	
              Procedure
      and Effect of Termination

            	
              70

            
	
              ARTICLE
      X

            	
              MISCELLANEOUS
      PROVISIONS

            	
              71

            
	
              SECTION
      10.1.

            	
              Survival
      of Representations and Warranties

            	
              71

            
	
              SECTION
      10.2.

            	
              Amendment
      and Modification

            	
              71

            
	
              SECTION
      10.3.

            	
              Validity

            	
              72

            
	
              SECTION
      10.4.

            	
              Expenses
      and Obligations

            	
              72

            
	
              SECTION
      10.5.

            	
              Specific
      Performance

            	
              72

            
	
              SECTION
      10.6.

            	
              Auction
      Process

            	
              72

            
	
              SECTION
      10.7.

            	
              Parties
      in Interest

            	
              72

            
	
              SECTION
      10.8.

            	
              Construction

            	
              73

            
	
              SECTION
      10.9.

            	
              Severability

            	
              73

            
	
              SECTION
      10.10.

            	
              Notices

            	
              73

            
	
              SECTION
      10.11.

            	
              Governing
      Law

            	
              74

            
	
              SECTION
      10.12.

            	
              Counterparts

            	
              74

            


    

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


          
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      	 	 	 Page
	 	 	 
	
              SECTION
      10.13.

            	
              Headings

            	
              75

            
	
              SECTION
      10.14.

            	
              Entire
      Agreement

            	
              75

            
	
              SECTION
      10.15.

            	
              Assignment

            	
              75

            
	
              SECTION
      10.16.

            	
              Jurisdiction
      and Venue

            	
              75

            
	
              SECTION
      10.17.

            	
              Waiver
      of Jury Trial

            	
              75

            
	
              SECTION
      10.18.

            	
              Interpretation

            	
              76

            


    

    


    


    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    
 

    
      
        	 
      
	
                EXHIBITS

              
	 
      	 
      
	
                Exhibit
      A

              	
                Form
      of DUS Note

              
	
                Exhibit
      B

              	
                Form
      of Holdback Note

              
	
                Exhibit
      C

              	
                Terms
      of Dynex Fannie Mae Note

              
	
                Exhibit
      D

              	
                Terms
      of Dynex Freddie Mac Note

              
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                SCHEDULES

              
	 
      	 
      
	
                Schedule
      1.1(i)

              	
                Acquired
      Assets

              
	
                Schedule
      1.1(ii)

              	
                [RESERVED]

              
	
                Schedule
      1.1(iii)

              	
                Sellers
      Knowledge Persons

              
	
                Schedule
      1.1(iv)

              	
                Purchaser
      Knowledge Persons

              
	
                Schedule
      1.1(v)

              	
                Lease
      Agreements

              
	
                Schedule
      1.1(vi)

              	
                Servicing
      Agreements

              
	
                Schedule
      1.1(vii)

              	
                June
      Proforma Accruals and Adjustment

              
	
                Schedule
      1.1(viii)

              	
                Servicing
      Adjustment

              
	
                Schedule
      1.1(ix)

              	
                Retention
      Adjustment

              
	
                Schedule
      1.1(x)

              	
                June
      Data Tape Adjustment

              
	
                Schedule
      1.1(xi)

              	
                Form
      of Horsham Lease Agreements

              
	
                Schedule
      1.1(xii)

              	
                Form
      of Software License Agreement

              
	
                Schedule
      1.1(xiii)

              	
                Form
      of Capmark Capital Subservicing Agreement

              
	
                Schedule
      1.1(xiv)

              	
                Form
      of Capmark Finance Servicing Agreement

              
	
                Schedule
      1.1(xv)

              	
                Form
      of Capmark Finance Subservicing Agreements

              
	
                Schedule
      1.1(xvi)

              	
                Form
      of Transition Services Agreement

              
	
                Schedule
      2.2(b)

              	
                Excluded
      Assets

              
	
                Schedule
      3.16(b)

              	
                Unaudited
      Balance Sheet of the Indian Subsidiary

              
	
                Schedule
      5.1(b)

              	
                Conduct
      of Business of the Sellers Prior to the Closing

              
	 
      	 
      
	
                Sellers
      Disclosure Schedule

              
	
                Purchaser
      Disclosure Schedule

              


      

      





    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    ASSET
PUT AGREEMENT

     

    ASSET PUT AGREEMENT, dated
September 2, 2009, by and among Berkadia III, LLC, a Delaware limited
liability company (the “Purchaser”), CAPMARK
FINANCE INC., a California corporation (“Capmark Finance”),
CAPMARK CAPITAL INC., a Colorado corporation (“Capmark Capital”),
and CAPMARK FINANCIAL GROUP INC., a Nevada corporation (“Parent” and,
collectively with Capmark Finance and Capmark Capital, the “Sellers”) and solely
with respect to Sections 2.5, 10.5, 10.7, 10.11, 10.16 and 10.17 hereof,
LEUCADIA NATIONAL CORPORATION, a New York corporation (“Leucadia”), BERKSHIRE
HATHAWAY INC., a Delaware corporation (“Berkshire” and
together with Leucadia, the “Limited
Guarantors”).

     

    RECITALS:

     

    WHEREAS,
the Sellers presently conduct the Mortgage Business (as hereinafter
defined);

     

    WHEREAS,
the Purchaser desires to grant and sell to the Sellers, and the Sellers desire
to acquire and purchase from the Purchaser, the Put Option (as hereinafter
defined), subject to and in accordance with the terms and conditions of this
Agreement (as hereinafter defined); and

     

    WHEREAS,
the Purchaser and the Sellers desire to make certain representations, warranties
and agreements in connection with the Put Option and the sale, transfer,
assignment, acquisition and assumption of the Acquired Assets (as hereinafter
defined) and Assumed Liabilities (as hereinafter defined) contemplated thereby
upon the exercise of the Sellers’ rights under the Put Option, and also desire
to set forth various conditions precedent thereto.

     

    NOW,
THEREFORE, in consideration of the mutual covenants, representations, warranties
and agreements herein contained, the Parties agree as follows:

     

    ARTICLE
I                      

     

    DEFINITIONS

     

    SECTION
1.1.   Definitions.  For
purposes of this Agreement, the term:

     

    “Accruals” means an
amount equal to the result of the following, without duplication, as of the
Closing Date, but in each case only to the extent included in the Acquired
Assets transferred to (and, in the case of clauses (i) and (j) below, Assumed
Liabilities assumed by) the Purchaser on the Closing Date: (a) the amount
of Advances outstanding with respect to Servicing Agreements, (b) plus
unpaid (accreted) principal balance of, and accrued and unpaid interest on, the
Purchased Loans (including any

     

    


    
      
        
           


        

        
          1

          
            

          

        

        
           


        

      

    

    


    outstanding
construction loan draws), (c) plus accrued and unpaid Servicing Fees,
(d) plus accrued and unpaid Ancillary Income (including Advance Interest
but excluding late charges), (e) plus prepaid expenses on Purchased
Contracts assigned to the Purchaser, (f) plus security deposits funded by
the Sellers for the Purchased Real Property Leases, (g) plus accounts
receivable, (h) plus accrued and unpaid placement fees (interest float) due
to the Sellers with respect to Custodial Accounts and other accounts transferred
to the Purchaser by the Sellers, (i) minus good faith deposits and similar
deposits of potential borrowers held by the Sellers in respect of Pipeline
Transactions, (j) minus earned and unpaid commissions related to the
Purchased Loans due to any Hired Employee; each of the foregoing shall be
calculated consistent with the June proforma estimates of such amounts set forth
on Schedule 1.1(vii).

     

    “Acquired Assets”
means all Properties, rights and claims of the Sellers primarily used in, or
related primarily to, the Mortgage Business, wherever situated and of whatever
kind and nature (tangible or intangible, and whether or not reflected on the
books and records of Sellers), including all of the
following:  (a) Purchased Contracts (including the Servicing
Agreements, Service Provider Agreements, Loan Applications, Committed Loans,
Purchased Loans, Purchased Real Property Leases and Pipeline Transactions) and
all rights thereunder, (b) Purchased IP and Purchased IT Systems,
(c) Purchased Equity Interest, (d) Purchased Fixtures and Equipment,
(e) Mortgage Business Books and Records, (f) prepaid expenses,
security deposits funded by the Sellers, accounts receivable, and insurance
claims (including HUD Mortgage Insurance claims), each to the extent related to
a Purchased Contract or the Mortgage Business, (g) Servicing Rights,
(h) Advances, (i) all assignable Licenses of the Sellers relating to
the Mortgage Business, (j) all assignable rights of the Sellers under
non-disclosure, non-compete or non-solicitation agreements with current or
former employees, consultants or agents, or third parties, relating to the
Mortgage Business, (k) all assignable rights of the Sellers under or
pursuant to all warranties, representations and guarantees made by suppliers,
manufacturers and contractors to the extent relating to any Acquired Assets or
Assumed Liabilities, (l) all goods and services and other economic benefits
to be received subsequent to the Closing arising out of prepayments and payments
by the Sellers prior to the Closing relating to the Acquired Assets, (m) all
insurance (and proceeds thereof) to the extent received or receivable in respect
of Acquired Assets or Assumed Liabilities in respect of events occurring after
the date of this Agreement, (n) to the extent not otherwise enumerated above,
all items that constitute Accruals, and (o) all other assets that are set
forth on Schedule 1.1(i);
provided that the Acquired
Assets shall not include the Excluded Assets.

     

    “Adjustment Amount”
has the meaning set forth in Section 2.4(a).

     

    “Advance Interest”
means the interest that accrues or has accrued on an Advance pursuant to the
applicable Servicing Agreement.

     

    “Advances” means, with
respect to any Servicing Agreement, the aggregate amount that as of any date of
determination has been advanced directly by Sellers or their Affiliates from
their own funds or funds borrowed by Sellers or their

     

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    Affiliates
from a third party (but not with funds borrowed from any Custodial Account or
other accounts under a Servicing Agreement) in connection with servicing the
Serviced Loans in accordance with the terms of such Servicing Agreement,
including with respect to principal, interest, overdrafts, taxes, property
protection and insurance premiums, together with the related accrued Advance
Interest.

     

    “Affiliate” of any
Person means another Person that directly or indirectly, through one or more
intermediaries, Controls, is Controlled by, or is under common Control with,
such Person; provided that with respect to
any Person, the term “Affiliate” shall not
include investment funds managed by such Person or any of its
Affiliates.

     

    “Agreement” means this
Asset Put Agreement and all schedules and exhibits hereto.

     

    “Ancillary Income”
means all revenue or income payable to the Servicer with respect to the Serviced
Loans (other than Servicing Fees) including any and all assumption fee income,
defeasance fees, rights to reimbursement for Advances (including all accrued and
unpaid Advance Interest), late charges, overdrafts and default
interest.

     

    “Assignment and Assumption
Agreement” means an assignment and assumption agreement in form and
substance customary for a transaction of the kind contemplated by this
Agreement.

     

    “Assignment of Intellectual
Property” means an assignment of Intellectual Property in form and
substance customary for a transaction of the kind contemplated by this
Agreement.

     

    “Assumed Liabilities”
means (a) all of the Liabilities of the Sellers to be performed after the
Closing Date under the Purchased Contracts (including the Servicing Agreements,
Purchased Loans, Service Provider Agreements, Loan Applications, Committed
Loans, Purchased IP and Purchased Real Property Leases, in each case, to the
extent constituting Acquired Assets), (b) all of the Liabilities of the
Sellers to be performed after the Closing Date under the Pipeline Transactions
entered into prior to the date of this Agreement and all Pipeline Transactions
entered into subsequent to the date of this Agreement in compliance with
Section 5.1, (c) all of the Sellers’ duties, obligations,
representations, warranties and Liabilities (in each case, other than
pre-Closing Legal Proceedings) under the Contracts with the Mortgage Program
Sponsors with respect to the Mortgage Programs arising or to be performed prior
to, on or after the Closing Date, but only to the extent that the Mortgage
Program Sponsors expressly condition their approval and execution of the Fannie
Mae Transfer Agreement or the Freddie Mac Transfer Agreement, granting of a
License or Required Consent to the Purchaser by Ginnie Mae or HUD, or consenting
to the transfer of a Purchased Contract to the Purchaser, as the case may be,
upon the express assumption by the Purchaser of, and the prohibition of recourse
by the Purchaser from or against the Sellers in respect of, such pre-Closing
duties, obligations, representations, warranties and Liabilities, (d) all
Liabilities to refund the good faith deposits and similar deposits of potential
borrowers in

     

    


    
      
        
           


        

        
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    respect
of Pipeline Transactions transferred to the Purchaser to be performed after the
Closing Date, and (e) earned and unpaid commissions related to the
Purchased Loans due to any Hired Employee; provided that Assumed
Liabilities shall not include any Excluded Liabilities or, except to the extent
otherwise provided under clause (c) above, any Liabilities (1) arising out
of or otherwise related to any breach, violation or default by a Seller or any
Affiliate thereof or (2) for which a Seller is required to provide
indemnification, contribution or other recourse in respect of pre-Closing
representations, events, actions or omissions.

     

    “Balance Sheet Date”
has the meaning set forth in Section 3.16(b).

     

    “Bankruptcy Code”
means the United States Code, 11 U.S.C. § 101 et seq.

     

    “Bankruptcy Court
Order” has the meaning set forth in Section 6.1(n).

     

    “Base Amount” has the
meaning set forth in Section 2.3(a).

     

    “Base Salary Amount”
has the meaning set forth in Section 3.14(h).

     

    “Basket” has the
meaning set forth in Section 8.1(c)(i).

     

    “Beekman” means
Beekman Advisors LLC.

     

    “Benefit Plans” has
the meaning set forth in Section 3.14(a).

     

    “Berkshire” has the
meaning set forth in the Preamble.

     

    “Bill of Sale and General
Assignment” means a bill of sale and general assignment in form and
substance customary for a transaction of the kind contemplated by this
Agreement.

     

    “Borrower” means each
obligor in respect of a Serviced Loan.

     

    “Business Day” means
any day other than a Saturday, a Sunday, a legal holiday in the State of New
York or a day on which banking institutions in the State of New York are
authorized or obligated by law to close.

     

    “Business Employee”
has the meaning set forth in Section 5.7(a).

     

    “Business Licenses”
has the meaning set forth in Section 3.13.

     

    “Cap” has the meaning
set forth in Section 8.1(c)(ii).

     

    “Capmark Bank
Contracts” has the meaning set forth in Section 5.16.

     

    “Capmark Capital” has
the meaning set forth in the Preamble.

     

    


    
      
        
           


        

        
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    “Capmark Capital Subservicing
Agreement” means that certain subservicing agreement by and between
Capmark Capital and Purchaser, substantially in the forms attached hereto as
Schedule 1.1(xiii).

     

    “Capmark Finance” has
the meaning set forth in the Preamble.

     

    “Capmark Finance Servicing
Agreement” means that certain servicing agreement by and between Capmark
Finance and Purchaser, substantially in the forms attached hereto as Schedule 1.1(xiv).

     

    “Capmark Finance Subservicing
Agreements” means those certain subservicing agreements by and between
Capmark Finance and Purchaser, substantially in the forms attached hereto as
Schedule 1.1(xv).

     

    “Closing” has the
meaning set forth in Section 7.1.

     

    “Closing Adjustment”
has the meaning set forth in Section 2.4(a).

     

    “Closing Date” has the
meaning set forth in Section 7.1.

     

    “Closing Period” has
the meaning set forth in Section 7.1.

     

    “Closing Resolution
Period” has the meaning set forth in Section 2.4(e).

     

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

     

    “Committed Loans”
means unexpired written commitments by any of the Sellers to make loans under
one or more Mortgage Programs to prospective borrowers which commitments have
not yet funded or closed and are listed on Schedule 1.1(i),
as updated pursuant to Section 2.2(e).

     

    “Confidential
Information” means all confidential, proprietary and/or non-public
financial or other information concerning a Party or its Affiliates, including
information concerning the assets, liabilities, accounting practices and general
operations of such Party or its Affiliates, and all analyses, summaries, notes,
and written or electronic records prepared by a Recipient that reflect upon, or
are based upon, such information that is furnished to a Recipient in connection
with this Agreement, any Transaction Document or the transactions contemplated
hereby or thereby; provided, however, that
Confidential Information shall not include information that: (a) is or
becomes generally available to the public through no violation of this
Agreement, (b) is or becomes available to the Recipient on a
non-confidential basis from a source other than a Disclosing Party or its
Affiliates that is not known to the Recipient to be prohibited from disclosing
such information by a contractual, legal or fiduciary obligation of
confidentiality, (c) is independently developed by the Recipient without
use of or reliance on, either directly or indirectly, the Confidential
Information, or (d) was known to or in the possession of the Recipient on a
non-confidential basis prior to disclosure by a Disclosing Party under the terms
of this Agreement.

     

    


    
      
        
           


        

        
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    “Contract” means any
contract, agreement, indenture, note, bond, loan, instrument, lease, conditional
sales contract, Mortgage, License, franchise, insurance policy, commitment or
other arrangement or agreement.

     

    “Contribution
Agreement” has the meaning set forth in
Section 5.4(h)(i).

     

    “Control” (including,
with correlative meanings, the terms “Controlled by”, “Controlling” and “under
common Control with”), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of voting
securities, by contract or otherwise.

     

    “Custodial Accounts”
means those certain cash accounts, Escrow Accounts, reserve accounts and lockbox
accounts held by any of the Sellers pursuant to or as contemplated by a
Servicing Agreement, including all bank accounts and investment accounts
established and maintained under, or in connection with, the Mortgage Programs
and the applicable Contracts for the purpose of holding deposits of principal
and interest, tax, insurance, replacement reserves, and other reserves required
of borrowers under the Purchased Loans and with respect to the Serviced
Loans.

     

    “Customer” means
(a) any Person that is an obligor, borrower, or purchaser under any
Purchased Loan and (b) any Person that guarantees or is otherwise liable to
the Sellers for all or part of the obligations of any such obligor, borrower,
purchaser or lessee.

     

    “Data Tape” means,
with reference to a particular date, a date tape containing all of the
information as of such date with respect to Mortgage Loans, Serviced Loans and
Servicing Agreement included in the as part of the Mortgage Business of the same
type and in the same detail as is contained in the June Data Tape.

     

    “Day Sixty” means the
date that is the 60th day immediately following the date of this
Agreement.

     

    “DBRS” means DBRS,
Inc. and its successors and assigns.

     

    “Disabling Code” has
the meaning set forth in Section 5.4(h)(ii).

     

    “Disclosing Party”
means a Party that discloses or has disclosed (or whose Affiliate or
Representative discloses or has disclosed) Confidential Information to a
Recipient in connection with this Agreement, any Transaction Document or the
transactions contemplated hereby or thereby.

     

    “DOJ” has the meaning
set forth in Section 3.5.

     

    “Draft Adjustment” has
the meaning set forth in Section 2.4(c).

     

    


    
      
        
           


        

        
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    “DUS Note” means a
promissory note of the Purchaser payable to Capmark Finance, substantially in
the form attached hereto as Exhibit A.

     

    “Dynex Fannie Mae
Loans” means the portfolio of eleven (11) multifamily mortgage loans sold
by Capmark Capital to Fannie Mae pursuant to the Special Pool Purchase Contract
dated August 2, 2001 between Capmark Capital and Fannie Mae (the “Dynex Fannie Mae
Contract”).

     

    “Dynex Fannie Mae
Note” means a promissory note of the Purchaser payable to Parent
consistent with the terms set forth on Exhibit C.

     

    “Dynex Fannie Mae Note
Principal Amount” means an amount equal to the maximum Liability of
Capmark Capital for losses with respect to the Dynex Fannie Mae Loans under the
Dynex Fannie Mae Contract as of the Closing Date.

     

    “Dynex Freddie Mac
Loans” means the portfolio of thirteen (13) multifamily mortgage loans
sold by Capmark Capital to Freddie Mac pursuant to the Purchase Agreement for
Multifamily PC Swaps dated September 24, 2004 between Capmark Capital and
Freddie Mac (the “Dynex Freddie Mac
Contract”).

     

    “Dynex Freddie Mac
Note” means a promissory note of the Purchaser payable to Parent
consistent with the terms set forth on Exhibit D.

     

    “Dynex Freddie Mac Note
Principal Amount” means an amount equal to the maximum Liability of
Capmark Capital for losses with respect to the Dynex Freddie Mac Loans under the
Dynex Freddie Mac Contract as of the Closing Date.

     

    “Earnings Adjustment
Amount” means an amount equal to (a) $394,000 multiplied by
(b) the number of days from and including October 1, 2009 through the
Closing Date.

     

    “Environmental, Health, and
Safety Requirements” means all applicable federal, state, local, and
foreign Laws worker health and safety as related to environmental matters,
pollution or protection of the environment or natural resources including all
those relating to the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control or cleanup of any
Hazardous Materials, as such Laws are enacted and in effect on or prior to the
Closing Date.

     

    “Epitome” has the
meaning set forth in Section 5.4(h)(i).

     

    “Equity Securities”
means, with respect to any Person, any and all shares, interests,
participations, options, warrants, rights in or other equivalents (however
designated, whether voting or non-voting) in the equity capital of such Person,
whether outstanding on the date of this Agreement or issued
hereafter.

     

    


    
      
        
           


        

        
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    “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended.

     

    “Escrow Account” means
an account maintained for the deposit of Escrow Payments for one or more
Serviced Loans.

     

    “Escrow Payments”
means, for each Serviced Loan, any payments required to be escrowed by the
Borrower or other third party pursuant to the requirements of the Serviced Loan
Documents, including amounts constituting ground rents, taxes, assessments,
water fees, sewer fees, municipal charges, fire and hazard and other insurance
premiums, replacement reserves, tenant improvement and leasing commission
reserves, debt service reserves, construction, rehabilitation or repair amounts
and/or any other reserve held in connection with or as collateral for, the
Serviced Loan, and amounts held in lieu of payments such as letters of credit
and other non-cash items.

     

    “Estimated Accruals”
means the aggregate amount of Accruals estimated in good faith by the Sellers
and the Purchaser (or by Beekman, in the event the parties do not agree) at
least three (3) Business Days prior to the Closing Date consistent with the
proforma Accruals as of June 30, 2009 set forth on Schedule 1.1(vii).

     

    “Estimated Adjustment”
means an amount (which may be a negative number) equal to 90% of the result of
(a) the Estimated Accruals (b) minus the Estimated Servicing
Adjustment Amount (c) minus the Estimated Retention Adjustment Amount
(d) minus the Estimated June Data Tape Adjustment Amount.

     

    “Estimated June Data Tape
Adjustment Amount” means the June Data Tape Adjustment Amount estimated
in good faith by the Sellers and the Purchaser (or by Beekman, in the event the
parties do not agree) at least three (3) Business Days prior to the Closing
Date, consistent with Schedule
1.1(x).

     

    “Estimated Retention
Adjustment Amount” means the Retention Adjustment Amount estimated in
good faith by the Sellers and the Purchaser (or by Beekman, in the event the
parties do not agree) at least three (3) Business Days prior to the Closing
Date, consistent with Schedule 1.1(ix).

     

    “Estimated Servicing
Adjustment Amount” means the Servicing Adjustment Amount estimated in
good faith by the Sellers and the Purchaser (or by Beekman, in the event the
parties do not agree) at least three (3) Business Days prior to the Closing
Date, consistent with Schedule 1.1(viii).

     

    “Exchange Act” means
the Securities and Exchange Act of 1934, as amended.

     

    “Exchange Act Rules”
means the rules and regulations promulgated under the Exchange Act.

     

    


    
      
        
           


        

        
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    “Excluded Assets” has
the meaning set forth in Section 2.2(b).

     

    “Excluded Liabilities”
has the meaning set forth in Section 2.2(d).

     

    “Fannie Mae” means the
Federal National Mortgage Association.

     

    “Fannie Mae Transfer
Agreement” means the agreement or agreements by and among Fannie Mae, the
Sellers and the Purchaser, relating to the assignment by the Sellers and the
assumption by the Purchaser of the Sellers’ rights and Liabilities relating to
the Fannie Mae DUS program and other programs and agreements with Fannie Mae
which are Assumed Liabilities, and the release by Fannie Mae of the Sellers from
all Assumed Liabilities with respect thereto unless Fannie Mae expressly
conditions its execution of the Fannie Mae Transfer Agreement upon the Sellers
remaining liable with respect thereto, in which case the Fannie Mae Transfer
Agreement shall not contain such release.

     

    “Final Order” means an
Order: (a) as to which the time to appeal, petition for certiorari or move
for review or rehearing has expired and as to which no appeal, petition for
certiorari or other proceeding for review or rehearing is pending or (b) if
an appeal, writ of certiorari, reargument or rehearing has been filed or sought,
the order or judgment has been affirmed by the highest court to which such order
or judgment was appealed or certiorari has been denied, or reargument or
rehearing shall have been denied or resulted in no modification of such order or
judgment, and the time to take any further appeal or to seek certiorari or
further reargument or rehearing has expired; provided that the theoretical
possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under the Federal Rules of Bankruptcy
Procedure, may be filed with respect to such order or judgment shall not prevent
such order or judgment from being considered a Final Order.

     

    “Fitch” means Fitch
Ratings, Ltd. and its successors and assigns.

     

    “Freddie Mac” means
the Federal Home Loan Mortgage Corp.

     

    “Freddie Mac Transfer
Agreement” means the agreement or agreements by and among Freddie Mac,
the Sellers and the Purchaser, relating to the assignment by the Sellers and the
assumption by the Purchaser of the Sellers’ rights and Liabilities relating to
the Multifamily Program Plus Seller/Servicer program and other programs and
agreements of Freddie Mac which are Assumed Liabilities, and the release by
Freddie Mac of the Sellers from all Assumed Liabilities with respect thereto,
unless Freddie Mac expressly conditions its execution of the Freddie Mac
Transfer Agreement upon the Sellers remaining liable with respect thereto, in
which case the Freddie Mac Transfer Agreement shall not contain such
release.

     

    “GAAP” means United
States generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby.

     

    


    
      
        
           


        

        
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    “Ginnie Mae” means the
Government National Mortgage Association.

     

    “Governmental
Authority” means any nation or government, any state or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, or any
political subdivision thereof, whether federal, state, local or foreign, or any
agency or instrumentality thereof, or any court.

     

    “Guaranteed
Obligations” has the meaning set forth in Section 2.5.

     

    “Hazardous Materials”
means any and all substances, materials or wastes that are regulated, defined,
classified or otherwise characterized as “hazardous,” “toxic,” a “pollutant” or
“contaminant” under any Environmental, Health and Safety Requirement, and
including crude oil, petroleum and its derivatives and by-products, asbestos and
asbestos-containing materials, lead, lead-based paint, mold, polychlorinated
biphenyls and urea formaldehyde.

     

    “Hired Employee” has
the meaning set forth in Section 5.7(a).

     

    “Holdback Note” means
a promissory note of the Purchaser payable to Parent in the principal amount of
$40,000,000, which shall mature on the second anniversary of the Closing Date
and bear interest at the rate of 6% per annum, substantially in the form
attached hereto as Exhibit B.

     

    “Horsham Lease
Agreements” means those certain lease agreements between Parent and the
Purchaser for the lease of Horsham Premises to Purchaser, substantially in the
form attached hereto as Schedule 1.1(xi).

     

    “Horsham Premises” has
the meaning set forth in Section 3.11(a).

     

    “HSR Act” has the
meaning set forth in Section 3.5.

     

    “HUD” means the U.S.
Department of Housing and Urban Development, and includes, without limitation,
the Federal Housing Administration.

     

    “HUD Mortgage
Insurance” means insurance by HUD under the National Housing Act against
loss occasioned by a default on a Serviced Loan.

     

    “Indebtedness” of any
Person means any of the following Liabilities or obligations of such Person:
(a) indebtedness for borrowed money (including any principal, premium,
accrued and unpaid interest), (b) liabilities evidenced by bonds,
debentures, notes, or other similar instruments or debt securities,
(c) liabilities under or in connection with letters of credit or bankers’
acceptances or similar items (in each case whether or not drawn, contingent or
otherwise), (d) liabilities related to the deferred purchase price of
property or services other than those trade payables incurred in the ordinary
course of business, (e) liabilities arising from cash/book overdrafts,
(f) liabilities under leases which, under GAAP or other applicable
accounting principles, are required

     

    


    
      
        
           


        

        
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    to be
capitalized for balance sheet purposes, (g) liabilities under conditional
sale or other title retention agreements, (h) liabilities with respect to
vendor advances or any other advances, (i) liabilities under interest rate
or currency swap transactions (valued at the termination value thereof), and
(j) all Liabilities or obligations of any other Person of the type referred
in to in clauses (a) through (i) guaranteed by such Person.

     

    “Independent
Accountants” has the meaning set forth in
Section 2.4(e).

     

    “Indian Material
Contracts” has the meaning set forth in Section 3.8(b).

     

    “Indian Premises” has
the meaning set forth in Section 3.11(b).

     

    “Indian Subsidiary”
means CapMark Overseas Processing India Private Limited, an Indian company
incorporated with limited liability.

     

    “Indian Subsidiary
Leases” has the meaning set forth in Section 3.11(b).

     

    “Indian Transfer Deed”
has the meaning set forth in Section 7.1(a)(ii).

     

    “Insolvency
Proceeding” means a voluntary or involuntary petition for liquidation or
reorganization relief pursuant to the Bankruptcy Code, or a proceeding under
similar law or statute relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts of any of the Sellers or the Indian
Subsidiary.

     

    “Intellectual
Property” means (a) all registered and unregistered trademarks,
service marks, trade names, trade dress, logos, slogans, domain names, and the
goodwill associated therewith, (b) all patents, inventions (whether or not
patentable), trade secrets, know-how, data, software, tools, methods, and
processes, (c) all copyrights and works of authorship, including all
computer programs (source and object code) and related documentation, and
(d) all registrations and applications for each of the
foregoing.

     

    “Investor” means the
holders of the legal and/or beneficial rights and benefits in the Serviced Loans
pursuant to the Servicing Agreements and/or Mortgage Programs, including the
holders of the certificates issued under the Servicing Agreements.

     

    “IRS” means the
Internal Revenue Service.

     

    “June Data Tape” means
the Data Tape delivered by the Sellers to the Purchaser regarding the Purchased
Loans, the Serviced Loans and the Servicing Agreements included in the Acquired
Assets and certain information with respect thereto, each as of June 30,
2009.

     

    “June Data Tape Adjustment
Amount” means the amount of losses, damages, deficiencies or reduction in
value to the Purchaser that, in the aggregate, exceed $1,000,000 from or arising
out of misstatements or other errors in the June Data Tape determined in
accordance with Schedule
1.1(x).

     

    


    
      
        
           


        

        
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    “Knowledge” means, as
of the date the applicable representation is given, (a) with respect to the
Sellers, the actual knowledge after reasonable due inquiry of any of the Persons
set forth in Schedule 1.1(iii)
and (b) with respect to the Purchaser, the actual knowledge after
reasonable due inquiry of any of the Persons set forth in Schedule 1.1(iv).

     

    “Laws” means all laws,
statutes, rules, regulations, ordinances and other pronouncements having the
effect of law (including common law) of the United States, any foreign country
or any domestic or foreign state, county, city or other political subdivision or
of any Governmental Authority.

     

    “Lease Agreements”
means those certain lease agreements set forth on Schedule 1.1(v).

     

    “Leased Premises”
means the leased premises pursuant to the Purchased Real Property
Leases.

     

    “Legal Proceeding”
means any judicial, equitable, or administrative action, suit, audit, mediation,
arbitration, investigation or proceeding (public, private, or
governmental).

     

    “Leucadia” has the
meaning set forth in the Preamble.

     

    “Liabilities” means
any liability or obligation of any nature (including those that are contingent,
unknown, undisclosed, unmatured, unaccrued, indirect, conditional, implied,
vicarious, derivative, joint, several or secondary liability), regardless of
whether such liability or obligation is required to be disclosed on a balance
sheet prepared in accordance with GAAP and regardless of whether such liability
or obligation is immediately due and payable.

     

    “License” means any
license, approval, registration, permit or other governmental authorization and
any license, permit or other authorization granted by any Governmental Authority
or Mortgage Program Sponsor.

     

    “Lien” means any
Mortgage, pledge, lien, assessment, option, right of first refusal, encumbrance,
charge, or other security interest, or any conditional sale Contract, title
retention Contract or other Contract to give any of the foregoing.

     

    “Limited Guarantee”
has the meaning set forth in Section 2.5.

     

    “Limited Guarantors”
has the meaning set forth in the Preamble.

     

    “Loan Applications”
means applications to any of the Sellers or their Affiliates for loans under the
Mortgage Programs which are not yet Committed Loans as of the Closing Date
listed on Schedule 1.1(i),
as updated pursuant to Section 2.2(e).

     

    “Losses” has the
meaning set forth in Section 8.1(a).

     

    


    
      
        
           


        

        
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    “Marks” has the
meaning set forth in Section 5.14(a).

     

    “Material Adverse
Effect” means any event, change, fact, circumstance or effect, which
individually or together with other events, changes, facts, circumstances or
effects, resulted, results or would reasonably be expected to result (whether
before or after the Closing) in a material adverse effect on the business,
financial condition or results of operations of the Mortgage Business, taken as
a whole; provided that none of the
following (to the extent they do not disproportionately affect a Seller, the
Indian Subsidiary or the Mortgage Business compared to other participants in the
industries in which the Mortgage Business operates) shall be deemed to
constitute, or be taken into account in determining whether there has been, a
Material Adverse Effect: (a) any adverse change in general business,
financial or economic conditions generally in the industries in which the
Mortgage Business and the Indian Subsidiary operate, (b) national or
international political conditions, including the engagement by the United
States in hostilities, whether or not pursuant to the declaration of a national
emergency or war, or the occurrence of any military or terrorist attack upon the
United States or any of its territories, possessions, or diplomatic or consular
offices or upon any military installation, equipment or personnel of the United
States, (c) any adverse change in general financial, banking or securities
markets (including any disruption thereof and any decline in the price of any
market index), (d) changes after the date of this Agreement in GAAP,
(e) the performance of any obligations under this Agreement, (f) the
announcement or pendency of the transactions contemplated by this Agreement,
(g) changes after the date of this Agreement in Laws, rules, regulations or
other binding directives issued by any Governmental Authority, (h) the
failure of any Seller to meet any analyst estimates or expectations or any
projections, forecasts or budgets, (i) any Business Employees not becoming
Hired Employees, or (j) in the event of any Insolvency Proceeding with
respect to a Seller, the fact, solely in and of itself, that such Seller will be
operating as a debtor-in-possession under the Bankruptcy Code; provided that the underlying
cause or causes of the changes, events, circumstances or effects with respect to
clauses (h) and (j) above may be taken into account in determining whether there
has been a Material Adverse Effect.

     

    “Moody’s” means
Moody’s Investors Service, Inc. and its successors and assigns.

     

    “Mortgage” means a
mortgage, deed of trust, pledge, or collateral assignment of a property trust
beneficiary interest or other instrument creating a Lien on or ownership
interest in a Mortgaged Property.

     

    “Mortgage Banking
Business” means the business of soliciting, originating, underwriting,
financing, refinancing or brokering of Mortgages, mortgage loans, Serviced Loans
or Pipeline Transactions as conducted by the Sellers in the United
States.

     

    “Mortgage Business”
means, collectively, the Mortgage Servicing Business and the Mortgage Banking
Business.

     

    


    
      
        
           


        

        
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    “Mortgage Business Books and
Records” means all Servicing Files, books, ledgers, files, reports,
plans, records, manuals, forms, letters, tapes and other materials (in each case
whether in paper, tape, electronic or other form) primarily of, or maintained
primarily for, or primarily related to, the Mortgage Business, other than those
relating to any Taxes or Tax Returns of the Sellers or their
Affiliates.

     

    “Mortgage Business
Confidential Information” has the meaning set forth in
Section 5.10(d)(i).

     

    “Mortgage Program
Sponsor” means each of Ginnie Mae, Fannie Mae, Freddie Mac and
HUD.

     

    “Mortgage Programs”
means the multifamily mortgage loan programs of Fannie Mae, Freddie Mac, HUD,
Ginnie Mae and other governmental agencies, including the Fannie Mae DUS
program, the Freddie Mac Multifamily Program Plus Seller/Servicer program, the
HUD Modified Accelerated Processing (“MAP”) Program and the
Ginnie Mae Multifamily MBS program, as issuer servicer, in each case relating
solely to Serviced Loans, forward purchase contracts, commitments or pipeline
transactions under the Mortgage Programs and relating to the Mortgage
Business.

     

    “Mortgage Servicing
Business” means the business of servicing Serviced Loans, including
acting as a Servicer, conducted by the Sellers in the United States and the
Indian Subsidiary.

     

    “Mortgaged Property”
means the real and personal property or properties securing any Serviced
Loan.

     

    “Non-U.S. Benefit
Plan” has the meaning set forth in Section 3.14(f).

     

    “OFAC” has the meaning
set forth in Section 4.9.

     

    “Officer’s
Certificate” means a certificate signed on behalf of the applicable
entity by the Manager, Member, Chairman of the Board, the Vice Chairman of the
Board, the President, the CEO, a Senior Vice President, Vice President,
Associate, Director, Managing Director or Assistant Vice President (each,
however denominated), the Treasurer, or the Secretary of the Purchaser, the
Sellers or the Indian Subsidiary, as the case may be, authorized to act with
respect to a particular matter.

     

    “Order” means any
writ, judgment, decision, decree, injunction, ruling, memorandum of
understanding, disciplinary action or similar order of any Governmental
Authority or Mortgage Program Sponsor (in each such case whether preliminary or
final).

     

    “Ordinary Course of
Business” means the ordinary and usual course of the Sellers’ and the
Indian Subsidiary’s conduct of the Mortgage Business consistent with past custom
and practice.

     

    


    
      
        
           


        

        
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    “Organizational
Documents” means, with respect to an entity, its articles of
incorporation, articles of association, memorandum of association, by-laws,
certificate of trust, trust agreement, certificate of formation, limited
liability company agreement or operating agreement, as applicable, as the same
has been amended from time to time.

     

    “Parent” has the
meaning set forth in the Preamble.

     

    “Parties” means
collectively the Sellers, the Purchaser, and with respect to Sections 2.5, 10.5,
10.7, 10.11, 10.16 and 10.17 only, the Guarantors.

     

    “Permitted Lien” means
any (a) statutory Lien for Taxes not yet due or delinquent, (b) mechanic’s,
warehouseman’s and other statutory Liens arising by operation of Law with
respect to a Liability that is not yet due or delinquent and does not arise out
of any violation of Law or Contract, and (c) with respect to the Leased
Premises, the Horsham Premises and the Indian Premises only, such imperfections
of title, charges, easements, restrictions or encumbrances which individually
and in the aggregate do not materially interfere with the present use of such
Properties or the use thereof contemplated by the Horsham Lease Agreements, the
Purchased Real Property Leases and the Indian Subsidiary Lease.

     

    “Person” means an
individual, corporation, partnership, limited liability company, joint venture,
association, trust, unincorporated organization or, as applicable, any other
entity.

     

    “Pipeline
Transactions” means all Loan Applications received by and all rate lock
agreements and commitments (including forward loan commitments to replace
construction loans with permanent loans) issued by any of the Sellers or their
Affiliates pursuant to the operation of the Mortgage Business.

     

    “Pre-Closing Data
Tape” has the meaning set forth in Section 2.2(e).

     

    “Property” or “Properties” means all
property and assets of whatsoever nature, including real and personal property,
whether tangible or intangible, and claims, rights and choses in
action.

     

    “Purchase and Sale”
has the meaning set forth in Section 2.1(a).

     

    “Purchase Price” has
the meaning set forth in Section 2.3(a).

     

    “Purchased Contracts”
means the Contracts that are acquired by the Purchaser as part of the Acquired
Assets (solely to the extent set forth on Schedule 1.1(i)
and any other Schedules expressly incorporated by reference therein, as updated
in accordance with Section 2.2(e)).

     

    “Purchased Equity
Interest” means all of the issued and outstanding Equity Securities of
the Indian Subsidiary.

     

    


    
      
        
           


        

        
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    “Purchased Fixtures and
Equipment” means all furniture, furnishings, vehicles, equipment,
computers, tools, supplies and other tangible personal property related
primarily to the Mortgage Business and set forth in Schedule 1.1(i), as
updated pursuant to Section 2.2(e).

     

    “Purchased IP” has the
meaning set forth in Section 3.10(a).

     

    “Purchased IT Systems”
has the meaning set forth in Section 3.10(b).

     

    “Purchased Loans”
means those loans listed on Schedule 1.1(i), as
updated in accordance with Section 2.2(e), which have been funded by the Sellers
or an Affiliate of the Sellers pursuant to the Mortgage Banking Business and
held by Sellers pending sale under (and eligible for sale pursuant to) one of
the Mortgage Programs.

     

    “Purchased Real Property
Leases” has the meaning set forth in Section 5.19.

     

    “Purchased Straddle
Contracts” has the meaning set forth in Section 5.4(g).

     

    “Purchaser” has the
meaning set forth in the Preamble.

     

    “Purchaser Disclosure
Schedule” has the meaning set forth in the introductory paragraph of
Article IV.

     

    “Purchaser Indemnified
Parties” has the meaning set forth in Section 8.1(a).

     

    “Purchaser Plans” has
the meaning set forth in Section 5.7(a).

     

    “Purchaser Termination
Fee” has the meaning set forth in Section 10.4(b).

     

    “Put Option” has the
meaning set forth in Section 2.1(a).

     

    “Put Option Exercise
Notice” means the irrevocable written notice of the Sellers’ exercise of
the Put Option.

     

    “Put Option Fee” has
the meaning set forth in Section 2.1(b).

     

    “Put Termination Date”
has the meaning set forth in Section 2.1(b).

     

    “Qualified Escrow
Accounts” means Custodial Accounts other than those labeled on the June
Data Tape as “outside invested” or “account closed.”

     

    “Rating Agencies”
means, as applicable, any one or more of S&P, Moody’s, Fitch and
DBRS.

     

    


    
      
        
           


        

        
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    “Recipient” means a
Party, its Affiliate or a Party’s Representative that receives or has received
Confidential Information from a Disclosing Party in connection with this
Agreement, any Transaction Document or the transactions contemplated hereby or
thereby.

     

    “Remaining Business”
has the meaning set forth in Section 5.4(g).

     

    “Representatives”
means the members, managers, officers, directors, employees, agents, counsel,
accountants, financial or other advisors, lenders and financing sources,
consultants and other representatives of any Person.

     

    “Required Consents”
means the consents set forth on Section 3.5 of the
Sellers Disclosure Schedule.

     

    “Restricted Business”
has the meaning set forth in Section 5.11.

     

    “Retained Straddle
Contracts” has the meaning set forth in Section 5.4(g).

     

    “Retention Adjustment
Amount” means an amount equal to (a) 56.7% of the aggregate amount
of the Retention Bonus Amounts due to all of the Hired Employees as set forth on
Schedule 1.1(ix)
less (b) the aggregate amount of the Retention Bonus Amount actually paid by the
Sellers to the Hired Employees between the date of this Agreement and the
Closing Date.

     

    “Retention Bonus
Amount” has the meaning set forth in Section 3.14(h).

     

    “S&P” means
Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies,
Inc., and its successors and assigns.

     

    “Securities Act” means
the Securities Act of 1933, as amended.

     

    “Securities Act Rules”
means the rules and regulations promulgated under the Securities
Act.

     

    “Securitization”
means, generally, any transaction in which any Person transferred loans, other
debt instruments or interests therein to a trust or other special-purpose
entity, either taking back or selling securities or other similar interests and
in connection with which a Seller entered into a Servicing
Agreement.

     

    “Seeking Party” has
the meaning set forth in Section 5.4(g).

     

    “Seller Indemnified
Parties” has the meaning set forth in Section 8.1(b).

     

    “Sellers” has the
meaning set forth in the Preamble.

     

    “Sellers Disclosure
Schedule” has the meaning set forth in the introductory paragraph of
Article III.

     

    


    
      
        
           


        

        
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    “Service Provider
Agreements” means agreements entered into in the Ordinary Course of
Business between the Sellers and any third party service providers (such as,
without limitation, closing attorneys, title insurers, appraisers, engineers,
and environmental firms) for the provision of services relating to the Mortgage
Business.

     

    “Serviced Loan” means
a mortgage loan on property that is located in the United States and serviced by
the Sellers as the Servicer pursuant to a Servicing Agreement.

     

    “Serviced Loan
Documents” means, for each Serviced Loan, the documents pertaining to
such Serviced Loan, including the Mortgage, the promissory note, all assignments
of the Mortgage, all endorsements and allonges to the promissory note, the title
insurance policy with all endorsements thereto, any security agreement and
financing statements, all documents and agreements establishing and controlling
any Escrow Accounts and Custodial Accounts, and any ground lease, guaranty,
letter of credit, cash management agreement, indemnity, intercreditor agreement
and franchise agreement and any assignments, assumptions, modifications,
continuations, or amendments to any of the foregoing.

     

    “Servicer” means the
designated capacity of Capmark Finance as “servicer”, “primary servicer”,
“master servicer”, “special servicer” or “subservicer” in respect of the
applicable Servicing Agreement.

     

    “Servicing Adjustment
Amount” means the adjustment determined in accordance with Schedule 1.1(viii)
with respect to loss of Servicing Agreements occurring between June 30, 2009 and
the Closing Date, whether as a result of cancellation, rights of first refusal,
failure to validly assign to Purchaser pursuant to this Agreement, termination
of servicing, or otherwise (a “Cancellation”).

     

    “Servicing Agreements”
means those pooling and servicing agreements, trust and servicing agreements,
primary servicing agreements, sub-servicing agreements and other servicing
agreements listed on Schedule 1.1(vi),
as updated pursuant to Section 2.2(e), pursuant to which the Sellers
conduct the Mortgage Servicing Business.

     

    “Servicing Fee” means
the servicing fee payable to the Servicer with respect to each Serviced
Loan.

     

    “Servicing Files”
means the documents, files, and other items pertaining to a particular Serviced
Loan, including the computer files, data disks, books, records, Data Tapes,
notes and all additional documents held by the Sellers and used in the Mortgage
Servicing Business.

     

    “Servicing Rights”
means the right to receive the Servicing Fee, Ancillary Income and any other
income or other benefit or right arising from or in connection with the
servicing of the Serviced Loans or Servicing Agreements, including in respect of
Custodial Accounts.

     

    


    
      
        
           


        

        
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    “Software License
Agreement” means that certain license agreement between Sellers and
Purchaser whereby Sellers grant a perpetual, non-exclusive license to Purchaser
with respect to certain proprietary software used in the Mortgage Business,
substantially in the form attached hereto as Schedule 1.1(xii).

     

    “Spending Accounts”
has the meaning set forth in Section 5.7(f).

     

    “Straddle Contracts”
has the meaning set forth in Section 5.4(g).

     

    “Subject Sections” has
the meaning set forth in Section 6.1(d)(B).

     

    “Survival Period” has
the meaning set forth in Section 10.1.

     

    “Tax” or “Taxes” means
(a) any and all federal, state, local or foreign taxes, charges, fees,
imposts, levies or other assessments, including all net income, gross receipts,
capital, sales, use, ad
valorem, value added, transfer, franchise, profits, inventory, capital
stock, license, withholding, payroll, employment, social security, unemployment,
excise, severance, stamp, occupation, property and estimated taxes, customs
duties, fees, assessments and charges imposed by any Governmental Authority;
(b) all interest, penalties, fines, additions to tax or additional amounts
imposed with respect to any item described in clause (a); and (c) any
liability in respect of any items described in clauses (a) and/or (b) payable by
reason of Contract, assumption, transferee liability, operation of law, Treasury
Regulation section 1.1502-6(a) (or any predecessor or successor thereof or any
analogous or similar provision under law) or otherwise.

     

    “Tax Return” means any
return, report or statement filed or required to be filed with respect to any
Tax (including any elections, declarations, schedules or attachments thereto,
and any amendment thereof), including any information return, claim for refund,
amended return or declaration of estimated Tax, and including, where permitted
or required, combined, consolidated or unitary returns for any group of entities
that includes any of the Sellers or the Indian Subsidiary.

     

    “Taxing Authority”
means the Internal Revenue Service and any other Governmental Authority
responsible for the administration of any Tax.

     

    “Third Party Claim”
has the meaning set forth in Section 8.1(f).

     

    “Total Consideration”
has the meaning set forth in Section 2.6.

     

    “Transaction
Documents” means this Agreement, the Assignment and Assumption Agreement,
the Bill of Sale and General Assignment, the Assignment of Intellectual
Property, the Fannie Mae Transfer Agreement, the Freddie Mac Transfer Agreement,
the Transition Services Agreement, the Indian Transfer Deed, the DUS Note, the
Dynex Fannie Mae Note, the Dynex Freddie Mac Note, the Holdback Note, the
Horsham Lease Agreements, the Software License Agreement, the Capmark
Capital

     

    


    
      
        
           


        

        
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    Subservicing
Agreements, the Capmark Finance Servicing Agreement, and the Capmark Finance
Subservicing Agreements.

     

    “Transfer Taxes” has
the meaning set forth in Section 5.12(a).

     

    “Transition Services
Agreement” means the transition services agreement in the form attached
hereto as Schedule 1.1(xvi).

     

    “Vendor” has the
meaning set forth in Section 5.4(g).

     

    “WARN” shall have the
meaning set forth in Section 5.7(g).

     

    “1060 Allocation
Schedule” has the meaning set forth in Section 2.6.

     

    ARTICLE
II

    THE PUT,
PURCHASE AND SALE

     

    SECTION
2.1.   The Put
Option.

     

    (a) The
Purchaser hereby sells and grants to the Sellers, and the Sellers hereby
purchase and acquire from the Purchaser, the option and right (the “Put Option”) to sell,
assign, transfer and convey to the Purchaser all of the Acquired Assets, and to
require the Purchaser to assume from the Sellers all of the Assumed Liabilities,
in each case subject to and in accordance with the terms and conditions of this
Agreement (such sale, assignment, transfer and conveyance of Acquired Assets and
assumption of Assumed Liabilities, the “Purchase and
Sale”).

     

    (b) The Put
Option shall be exercisable by the Sellers in their sole discretion by delivery
to the Purchaser of a Put Option Exercise Notice prior to the earliest to occur
(the “Put Termination
Date”) of the following: (i) if an Insolvency Proceeding with
respect to the Sellers has been commenced prior to Day Sixty, the Put
Termination Date shall be the 60th day immediately following the date such
Insolvency Proceeding shall have commenced, (ii) if an Insolvency Proceeding
with respect to the Sellers has not been commenced prior to Day Sixty, the Put
Termination Date shall be Day Sixty, and (iii) termination of this
Agreement pursuant to Section 9.1.  In the event that the Put
Option shall not have been exercised prior to the Put Termination Date, all
rights of the Sellers under the Put Option shall expire.  In
consideration of the grant by the Purchaser of the Put Option, the Sellers shall
pay to the Purchaser on the date of this Agreement $40,000,000 (the “Put Option Fee”) by
wire transfer to a bank account specified in writing by Purchaser.

     

    SECTION
2.2.   Purchase and
Sale.  Following the exercise of the Put Option by the Sellers’
delivery to the Purchaser of the Put Option Exercise Notice prior to the Put
Termination Date, the following shall apply with respect to the Purchase and
Sale:

     

    (a) On the
terms and subject to the conditions hereof, at the Closing, (i) the Sellers
shall sell, assign, transfer and convey to the Purchaser, free and clear of
all

     

    


    
      
        
           


        

        
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    Liens
(other than Permitted Liens), all of the Sellers’ respective right, title and
interest in, to and under the Acquired Assets, and (ii) the Purchaser will
purchase and acquire from the Sellers all of the Sellers’ respective right,
title and interest in, to and under the Acquired Assets.

     

    (b) The
Sellers hereby acknowledge and agree that the Purchaser shall not purchase or
acquire from the Sellers pursuant to this Agreement any Properties of the
Sellers set forth in Schedule 2.2(b),
any real property owned by a Seller (other than rights under the Horsham Lease
Agreements), any Lease Agreements not included in the Purchased Real Property
Leases or any other Property that is not an Acquired Asset (such Properties of
the Sellers being referred to herein, collectively, as the “Excluded
Assets”).

     

    (c) On and
subject to the terms and conditions of this Agreement (and subject to Article IX
hereof), the Purchaser will, effective as of the Closing, assume and become
responsible for, and thereafter pay, perform or discharge when due, all of the
Assumed Liabilities.

     

    (d) Notwithstanding
anything in this Section 2.2 or any other provision hereof to the contrary,
the Sellers expressly covenant and agree that the Purchaser shall assume only
the Assumed Liabilities and shall not accept, assume, agree to pay, perform or
otherwise discharge, satisfy or be liable for any other Liabilities of the
Sellers (the “Excluded
Liabilities”).  Without limiting the generality of the
foregoing, “Excluded Liabilities” include, without limitation, (i) all
Liabilities and obligations of any of the Sellers under, arising out of, in
respect of or related to (A) Excluded Assets, (B) Indebtedness,
(C) Legal Proceedings or Orders, (D) Taxes (except to the extent
otherwise provided in Section 5.12(b)), (E) any breach or violation
of, or default by any of the Sellers under, any Contract, Law or License, except
to the extent otherwise provided under clause (c) of the definition of “Assumed
Liabilities” in Article I hereof, or (F) Benefit Plans, (ii) Sellers’
obligations under or in connection with this Agreement or any Transaction
Document, and (iii) environmental conditions at the Horsham Premises, the
Indian Premises and the Leased Premises not caused by Purchaser, Purchaser’s
employees, agents, contractors or invitees.

     

    (e) On the
second Business Day prior to the Closing Date, the Sellers shall cause to be
prepared and delivered to the Purchaser an updated Schedule 1.1(i)
(including any other applicable schedule expressly cross-referenced therein) of
Acquired Assets, as of a date no more than five (5) Business Days prior to the
Closing Date.  Such updated schedules shall reflect solely those
assets in respect of the Mortgage Business that (i) are of the type set
forth in the definition of “Acquired Assets” in Article I hereof that
provide for updating in accordance with this Section 2.2(e), and
(ii) are (y) acquired or assumed or (z) disposed of or
discharged, in each case, between the date of this Agreement and the Closing
Date in compliance with the provisions of Section 5.1.  On the
second Business Day prior to the Closing Date, the Sellers shall cause to be
prepared and delivered to the Purchaser a Data Tape reflecting the Serviced
Loans and the Mortgage loans (and information relating thereto), as of a date no
more than five (5) Business Days prior to the Closing Date (the “Pre-Closing Data
Tape”).

     

     

    
      
         

      

      
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    SECTION
2.3.   Consideration.

     

    (a) The
consideration for the Acquired Assets (the “Purchase Price”)
payable to Parent (for itself and as agent for the other Sellers) shall be equal
to (i) $490,000,000 minus the Earnings Adjustment Amount (the “Base Amount”), (ii)
plus the Accruals, (iii) minus the Servicing Adjustment Amount, (iv) minus
the Retention Adjustment Amount (v) minus the June Data Tape Adjustment
Amount.  The Purchase Price shall be paid as set forth in
Sections 2.3(b) and 2.4.

     

    (b) On and
subject to the terms and conditions of this Agreement, on the Closing Date, the
Purchaser shall remit to the Parent (for itself and as agent to the other
Sellers) an amount equal to the Base Amount plus the amount of the Estimated
Adjustment, if the amount of the Estimated Adjustment is a positive number (or
minus the amount of the Estimated Adjustment, expressed as a positive number, if
the amount of the Estimated Adjustment is a negative number), as
follows:

     

    (i) $75,000,000
shall be paid by delivery to Parent of the DUS Note;

     

    (ii) an amount
equal to the Dynex Fannie Mae Note Principal Amount shall be paid to Parent
(A) in the event that Fannie Mae assures the Purchaser that Fannie Mae
shall not seek recourse against the Purchaser for any Liabilities in respect of
the Dynex Fannie Mae Loans under the Dynex Fannie Mae Contract, by wire transfer
to a bank account specified in writing by Parent at least two (2) Business Days
prior to the Closing Date, and (B) otherwise, by delivery of the Dynex
Fannie Mae Note;

     

    (iii)  an
amount equal to the Dynex Freddie Mac Note Principal Amount shall be paid to
Parent (A) in the event that Freddie Mac assures the Purchaser that Freddie
Mac shall not seek recourse against the Purchaser for any Liabilities in respect
of the Dynex Freddie Mac Loans under the Dynex Freddie Mac Contract, by wire
transfer to a bank account specified in writing by Parent at least two (2)
Business Days prior to the Closing Date, and (B) otherwise, by delivery of
the Dynex Freddie Mac Note;

     

    (iv) $40,000,000
shall be paid to Parent, (A) in the event that an Insolvency Proceeding
with respect to the Sellers has been commenced and a Bankruptcy Court Order has
been entered on or before the Closing Date, by wire transfer to a bank account
specified in writing by Parent at least two (2) Business Days prior to the
Closing Date, and (B) otherwise, by delivery of the Holdback Note;
and

     

    (v) the
balance shall be paid by wire transfer to a bank account specified in writing by
Parent at least two (2) Business Days prior to the Closing Date.

     

     

     

    
      
         

      

      
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    SECTION
2.4.   Adjustment
Amount.

     

    (a) The
“Adjustment
Amount” (which may be a positive or negative number) will be equal to the
amount determined by subtracting the absolute amount of the Closing Adjustment
(as hereafter defined) from the Estimated Adjustment.  If the
Adjustment Amount is positive, the Adjustment Amount shall be paid by wire
transfer by the Sellers to an account specified in writing by the
Purchaser.  If the Adjustment Amount is negative, the difference
between the Closing Adjustment and the Estimated Adjustment, expressed as a
positive number, shall be paid by wire transfer by the Purchaser to an account
specified in writing by the Sellers.  Within three (3) Business Days
after the calculation of the Closing Adjustment becomes binding and conclusive
on the Parties pursuant to this Section 2.4, the Sellers or the Purchaser,
as the case may be, shall make the wire transfer payment provided for in this
Section 2.4(a).  The “Closing Adjustment”
means an amount (which may be a positive or negative number) equal to the result
of (A) the Accruals (B) minus the Servicing Adjustment Amount
(C) minus the Retention Adjustment Amount (D) minus the June Data Tape
Adjustment Amount.  Notwithstanding anything in this Agreement to the
contrary, there shall be no duplication of adjustments to the Purchase Price
under Article II and indemnification under Article VIII shall not be
available for a Loss to the extent that such Loss is fully reimbursed by an
adjustment under Article II.

     

    (b) The
Sellers and the Purchaser shall (or, in the event they do not agree, they shall
cause Beekman to) deliver to the Purchaser and the Sellers, no later than three
(3) Business Days prior to the Closing Date, their or its (as applicable) good
faith calculation, in reasonable detail and accompanied by sufficient
information reasonably necessary to allow the Parties to verify such
calculation, of the amount of the Estimated Accruals, the Estimated Retention
Adjustment Amount, the Estimated Servicing Adjustment Amount, and Estimated June
Data Tape Adjustment Amount based upon, among other things, the Pre-Closing Data
Tape and a review of the June Data Tape.

     

    (c) As soon
as practicable, but in no event later than twenty (20) Business Days following
the Closing Date, the Sellers shall cause to be prepared and delivered to the
Purchaser a draft calculation of the Accruals, the Retention Adjustment Amount,
the Servicing Adjustment Amount and the June Data Tape Adjustment Amount (the
“Draft
Adjustment”), in reasonable detail and accompanied by sufficient
information reasonably necessary to allow the Purchaser to verify such
calculation.

     

    (d) If within
twenty (20) Business Days following delivery of the Draft Adjustment and the
other information described in Section 2.4(c), the Purchaser has not given the
Sellers written notice of its objection thereto (which notice shall state the
basis of any such objection in reasonable detail), then the Draft Adjustments
calculated by the Sellers shall constitute the amount of the Accruals, the
Retention Adjustment Amount, the Servicing Adjustment Amount and the June Data
Tape Adjustment Amount for purposes of the Closing Adjustment and be binding and
conclusive on the Parties and be used in computing the Adjustment
Amount.

     

    


    
      
        
           


        

        
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    (e) If the
Purchaser gives the Sellers such notice of objection on or prior to the
twentieth (20th) Business Day following Purchaser’s receipt of the Draft
Adjustments and the other information described in Section 2.4(c), the
Sellers and the Purchaser shall attempt to resolve their differences with
respect to the calculation of the Accruals, the Retention Adjustment Amount, the
Servicing Adjustment Amount and the June Data Tape Adjustment Amount within ten
(10) Business Days of the Sellers’ receipt of the Purchaser’s objection notice
(the “Closing
Resolution Period”), and any resolution by them as to any disputed
amounts shall be binding and conclusive.  The Sellers and the
Purchaser shall submit any amounts or issues remaining in dispute to a firm of
nationally recognized independent public accountants (the “Independent
Accountants”) selected by the Parties within five (5) days after the
expiration of the Closing Resolution Period for resolution.  If
Sellers and Purchaser are unable to agree on the Independent Accountants, then
each of the Sellers, on the one hand, and the Purchaser, on the other hand,
shall have the right to request the American Arbitration Association to appoint
Independent Accountants who shall not have had a material relationship with the
Sellers, the Purchaser or any of their respective Affiliates within the past two
(2) years.  Each Party agrees to execute, if requested by the
Independent Accountants, a reasonable engagement letter, including customary
indemnities.  If amounts or issues are submitted to the Independent
Accountants for resolution:

     

    (i) the
Sellers and the Purchaser shall furnish or cause to be furnished to the
Independent Accountants such data, documents and information relating to the
disputed amounts or issues as the Independent Accountants may reasonably request
and are available to that Party or its agents and shall be afforded the
opportunity to present to the Independent Accountants any material relating to
the disputed amounts or issues and to discuss them with the Independent
Accountants;

     

    (ii) the
determination by the Independent Accountants, as set forth in a notice to be
delivered to both the Sellers and the Purchaser within thirty (30) days of the
submission to the Independent Accountants of the amounts or issues remaining in
dispute, shall be final, binding and conclusive on the Parties and shall be used
in the computation of the Adjustment Amount;

     

    (iii) The
Independent Accountants will be instructed that (A) they may only consider
those items and amounts which the Sellers and the Purchaser have disputed within
the time periods and on the terms specified above, and (B) they must
resolve the dispute in accordance with the terms and conditions of this
Agreement; and

     

    (iv) the
Sellers, on the one hand, and the Purchaser, on the other hand, will each bear
fifty percent (50%) of the fees and costs of the Independent Accountants for
such determination.

     

    SECTION
2.5.   Guaranty.  Subject
to the terms and conditions set forth in this Agreement (including this Section
2.5), the Limited Guarantors, jointly and severally,

     

    


    
      
        
           


        

        
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    hereby
irrevocably guarantee (the “Limited Guarantee”)
to the Sellers (a) all of the obligations and liabilities of the Purchaser that
are to be performed by the Purchaser under this Agreement from the date of this
Agreement through the Closing, including any of Sellers’ Losses and remedies
(including specific performance and injunctive relief) resulting or arising from
any breaches thereof, and (b) the punctual payment, when and as due, of the
Purchase Price, including any payments due under the DUS Note, the Dynex Fannie
Mae Note, the Dynex Freddie Mac Note, or the Holdback Note, any Adjustment
Amount due to the Sellers pursuant to Section 2.4, and the Purchaser
Termination Fee (collectively, the “Guaranteed
Obligations”).  Each Limited Guarantor agrees that the Sellers
may enforce the Limited Guarantee without the necessity of first exhausting
remedies against the Purchaser in respect of the Guaranteed
Obligations.  Notwithstanding anything to the contrary, the Limited
Guarantors do not waive rights, setoffs, counterclaims and other defenses that
the Purchaser may have in respect of Guaranteed Obligations (including failure
of any condition in Section 6.1 to be satisfied) and if Purchaser is
relieved of any of the Guaranteed Obligations, the Limited Guarantors shall be
similarly relieved of their obligations with respect thereto (except any legal
discharge or defense arising from bankruptcy, insolvency, dissolution or
liquidation of the Purchaser).  Notwithstanding anything to the
contrary, the Limited Guarantee shall terminate and be of no further force or
effect upon the date a Limited Guarantor’s obligations under the Limited
Guarantee are irrevocably satisfied and paid in full.

     

    SECTION
2.6.   Purchase Price
Allocation.  Not later than seventy-five (75) days after the
Closing Date, the Sellers shall prepare and deliver to the Purchaser a draft
allocation schedule (the “1060 Allocation
Schedule”) pursuant to which the Purchase Price and the Assumed
Liabilities (plus any other relevant items, and subject to appropriate
adjustments in accordance with Section 1060 of the Code) (such amount, as
adjusted, the “Total
Consideration”) shall be allocated among the Acquired Assets for all
applicable Tax purposes in a manner consistent with Section 1060 of the Code and
the Treasury regulations thereunder.  The Parties agree that for
purposes of such allocation and all other applicable Tax purposes, (a) the
Put Option Fee shall be treated as option premium and, in the event the Put
Option is exercised, shall be a reduction in the Total Consideration, and
(b) the consideration allocable to the Purchased Equity Interest shall
include only cash, and not any portion of the DUS Note, the Dynex Fannie Mae
Note, the Dynex Freddie Mac Note, or the Holdback Note.  Promptly
following such delivery, the Parties shall in good faith work to resolve any
disagreements and to finalize a mutually agreeable 1060 Allocation Schedule,
which shall be, if so mutually agreed, final and binding on the
Parties.  To the extent the 1060 Allocation Schedule becomes final and
binding on the Parties, all Tax Returns filed by the Purchaser and Sellers shall
be prepared consistently with such allocation.  If no mutual agreement
is reached within sixty (60) days, then the 1060 Allocation Schedule shall not
be binding on either party.  The 1060 Allocation Schedule may be
modified, as agreed to by the Parties, to reflect any adjustments to the Total
Consideration.

     

     

     

     

    
      
         

      

      
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    ARTICLE
III

    REPRESENTATIONS
AND WARRANTIES OF THE SELLERS

     

    Each of
the Sellers represents and warrants, jointly and severally, to the Purchaser
that the statements contained in this Article III are correct and complete,
except as set forth in the disclosure schedule accompanying this Agreement with
specific reference to the applicable section of this Article III to which
the disclosures on such schedule relate (the “Sellers Disclosure
Schedule”).

     

    SECTION
3.1.   Organization and
Qualification.  Each of the Sellers is a corporation duly
organized, validly existing, and in good standing under the Laws of the state of
its jurisdiction of incorporation, and has all requisite corporate power and
authority to own, operate and lease its assets and properties and to carry on
its business as it is now being conducted.  Each of the Sellers is
duly qualified and authorized to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction in which it owns or leases
real property and each other jurisdiction in which the conduct of its business
or the ownership of its properties requires such qualification or authorization,
except where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect.

     

    SECTION
3.2.   Subsidiary.

     

    (a) The
Indian Subsidiary is a company incorporated with limited liability duly
organized and validly existing under the laws of the country of its jurisdiction
of formation, with all requisite corporate power and authority to own, operate
and lease its assets and properties and to carry on its business as it is now
being conducted.  The Indian Subsidiary is duly qualified and
authorized to do business under the laws of each jurisdiction in which it owns
or leases real property and each other jurisdiction in which the conduct of its
business or the ownership of its properties requires such qualification or
authorization, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect.

     

    (b) A
complete and accurate list of the Purchased Equity Interest is set forth on
Section 3.2(b) of
the Sellers Disclosure Schedule.  The Purchased Equity Interest
is owned beneficially and of record by the applicable Seller as set forth on
Section 3.2(b) of the
Sellers Disclosure Schedule.  The Purchased Equity Interest is
duly authorized, validly issued and fully paid and non-assessable and was not
issued in violation of any purchase or call option, right of first refusal,
subscription right, preemptive right or any similar right.

     

    (c) There are
no outstanding subscriptions, options, warrants, puts, calls, convertible or
exchangeable securities, agreements, understandings, claims or other commitments
or rights of any type (including stock appreciation rights, phantom stock or
similar rights) or other securities (i) requiring the issuance, sale,
transfer, exchange, repurchase, redemption or other acquisition of any Equity
Securities of the Indian Subsidiary, (ii) restricting the transfer of any
of the Equity Securities of the Indian

     

    


    
      
        
           


        

        
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    Subsidiary
or (iii) relating to the voting rights of any of the Equity Securities of
the Indian Subsidiary.

     

    (d) There are
no Persons in which the Indian Subsidiary owns, of record or beneficially, any
direct or indirect equity or other ownership interest (including Equity
Securities) or possesses any right (contingent or otherwise) to acquire the
same. There are no obligations of the Indian Subsidiary to (A) repurchase,
redeem or otherwise acquire any Equity Securities of any other Person or
(B) make any equity investment in or capital contribution to, any other
Person. The Indian Subsidiary is not a member of or party to (and no part of its
business is conducted through) any partnership, joint venture or similar
arrangement.

     

    SECTION
3.3.   Authorization.

     

    (a) Each of
the Sellers has all necessary corporate power and authority to execute and
deliver this Agreement and the other Transaction Documents to which it is a
party and to perform its obligations hereunder and thereunder and consummate the
transactions contemplated hereby and thereby.

     

    (b) This
Agreement has been duly and validly authorized, executed and delivered by each
of the Sellers, and each of the other Transaction Documents to which such Seller
is a party, when so executed and delivered by such Seller, will have been duly
and validly authorized, executed and delivered by such Seller, and assuming the
due authorization, execution and delivery by the other Parties to this Agreement
and the Transaction Documents, this Agreement constitutes, and the other
Transaction Documents when so executed and delivered will constitute, a valid
and binding obligation of each such Seller, enforceable against it in accordance
with its respective terms, except to the extent that such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar Laws now or hereafter in effect relating to creditors’ rights
generally, and to the extent that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.

     

    SECTION
3.4.   No
Violation.  Except as set forth in Section 3.4 of the Sellers
Disclosure Schedule, none of the execution and delivery of this Agreement
or the other Transaction Documents by each of the Sellers (as applicable), the
performance by each of the Sellers of its obligations hereunder and thereunder,
nor the consummation by each of the Sellers of the transactions contemplated
hereby and thereby will (a) conflict with or result in a breach of any
provision of the Organizational Documents of either Seller or the Indian
Subsidiary, (b) conflict with or result in a breach of, or constitute a
default (with or without due notice or lapse of time or both) or result in or
give any Person any right of termination, cancellation, acceleration or
modification, under the terms, conditions or provisions of any note, bond,
Mortgage or indenture, or any material License, lease or Contract to which
either Seller or the Indian Subsidiary is a party, (c) violate, in any
material respect, any Law or Order of any Governmental Authority applicable to
either of

     

    


    
      
        
           


        

        
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    the
Sellers or the Indian Subsidiary, or (d) result in the imposition or
creation of a material Lien (other than a Permitted Lien) upon or with respect
to the Acquired Assets or the assets and properties of the Indian
Subsidiary.

     

    SECTION
3.5.   Consents and
Approvals.  Except as set forth in Section 3.5 of the Sellers
Disclosure Schedule (the “Required Consents”)
and without giving effect to the provisions of Sections 5.4(b) or 5.4(d),
no filing or registration with, notice to or permit, authorization, waiver,
consent or approval of any Person or any Governmental Authority or Mortgage
Program Sponsor is necessary for the consummation by the Sellers of the
transactions contemplated by this Agreement and the other Transaction Documents
other than (i) consents and approvals of or filings or registrations with
the Federal Trade Commission and the Antitrust Division of the United States
Department of Justice (the “DOJ”) pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and
(ii) those already obtained.

     

    SECTION
3.6.   Brokers’ Fees and
Commissions.  Neither the Sellers nor the Indian Subsidiary has
any Liability or obligation to pay any fees or commissions or any similar
payment to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Purchaser could become liable or
obligated.

     

    SECTION
3.7.   Title to Acquired Assets;
Sufficiency.

     

    (a) Except as
set forth on Section
3.7(a) of the Sellers Disclosure Schedule, the Sellers own and have good
and valid title to (or, with respect to the leased Properties listed on Section 3.7(a) of the
Sellers Disclosure Schedule, a valid leasehold interest in) each of the
Acquired Assets (other than Purchased IP which is covered by
Section 3.10(a)), in each case free and clear of all Liens (other than
Permitted Liens).  Pursuant to this Agreement and the other
Transaction Documents, at the Closing the Purchaser will receive all right,
title and interest in, under and to all of the Acquired Assets free and clear of
all Liens other than (i) Permitted Liens and (ii) any Liens created by
the Purchaser.

     

    (b) Subject
to the Purchaser obtaining and maintaining all Licenses necessary for it to
conduct the Mortgage Business, the Purchaser’s ability to fund Advances and
Mortgage loans, the Purchaser’s ability to maintain capital requirements and
satisfy other conditions of the Rating Agencies necessary to maintain adequate
credit ratings, the Purchaser not obtaining any real property or leases to real
property (other than pursuant to the Horsham Lease Agreements and Purchased Real
Property Leases), the Purchaser not hiring all of the Business Employees and not
currently maintaining human resources, accounting, tax, legal or other items of
corporate overhead not covered by the Transition Services Agreement, and except
as set forth on Section 3.7(b) of the Sellers Disclosure Schedule, the Acquired
Assets (together with the Property to be leased to the Purchaser pursuant to the
Purchased Real Property Leases and the Horsham Lease Agreements, the software to
be licensed to Purchaser pursuant to the Software License Agreement, the Marks
to be licensed pursuant to this Agreement and the services to be

     

    


    
      
        
           


        

        
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    provided
pursuant to the Transition Services Agreement) constitute all of the Properties
and rights primarily used in, or related primarily to, the Mortgage Business and
are sufficient for Purchaser to conduct the Mortgage Business as it is presently
conducted by Sellers.

     

    SECTION
3.8.   Contracts.

     

    (a) Purchased
Contracts.  Schedule 1.1(i)
sets forth a true and complete list of the Purchased Contracts as of the date of
this Agreement.

     

    (b) Indian Subsidiary
Contracts.  Section 3.8(b) of the
Sellers Disclosure Schedule lists the following Contracts to which the
Indian Subsidiary is a party or by which it is bound as of the date of this
Agreement (collectively, the “Indian Material
Contracts”):

     

    (i) any
Contract (or group of related Contracts) for the purchase or sale of assets, or
for the furnishing or receipt of services, the performance of which will extend
over a period of more than one (1) year, or involve amounts payable by the
Indian Subsidiary in excess of $100,000;

     

    (ii) any
Contract relating to the incurrence, assumption or guarantee of any Indebtedness
or imposing a material Lien on any of the assets of the Indian
Subsidiary;

     

    (iii) any
Contract between the Indian Subsidiary and either of the Sellers or their
Affiliates;

     

    (iv) any
Contract with an officer, director, stockholder or Affiliate of the Indian
Subsidiary which is still in effect or has any ongoing obligations as of the
date of this Agreement;

     

    (v) any
Contract under which the Indian Subsidiary has made advances or loans to any
other Person;

     

    (vi) any
Contract for joint ventures, strategic alliances, partnerships, licensing
arrangements, or sharing of profits or proprietary information;

     

    (vii) any
Contract containing covenants of the Indian Subsidiary not to compete in any
line of business or with any Person in any geographical area or not to solicit
or hire any Person with respect to employment or covenants of any other Person
not to compete with the Indian Subsidiary in any line of business or in any
geographical area or not to solicit or hire any Person with respect to
employment;

     

    (viii) any
Contract providing for severance, retention, change in control or other similar
payments;

     

    


    
      
        
           


        

        
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    (ix) any
Contract for the employment of any individual on a full-time, part-time or
consulting or other basis providing annual compensation in excess of
$50,000;

     

    (x) any
material management Contracts and Contracts with independent contractors or
consultants (or similar arrangements) that are not cancelable without penalty or
further payment and without more than 30 days’ notice;

     

    (xi) any
outstanding Contract of guaranty, surety or indemnification, direct or indirect,
by the Indian Subsidiary;

     

    (xii) any power
of attorney given to a third party by the Indian Subsidiary that is currently
effective and outstanding; and

     

    (xiii) any
outstanding written commitment to enter into any Contract of the type described
above.

     

    (c) Each of
the Indian Material Contracts and the Purchased Contracts is in full force and
effect and is the legal, valid and binding obligation of a Seller or the Indian
Subsidiary which is a party thereto, and, to the Knowledge of Sellers, of the
other parties thereto, enforceable against each of them in accordance with its
terms, except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or
hereafter in effect relating to creditors’ rights generally, and to the extent
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought, and, upon
consummation of the transactions contemplated by this Agreement, shall, except
as otherwise stated in Section 3.8(c) of the
Sellers Disclosure Schedule, continue in full force and effect without
penalty or other adverse consequence.  None of the Sellers or the
Indian Subsidiary, as applicable, is in breach in any material respect of or in
default under any Purchased Contract or Indian Material Contract, nor, to the
Knowledge of the Sellers, is any other party to any Purchased Contract or Indian
Material Contract in breach in any material respect of or in default thereunder,
and no event has occurred that with the lapse of time or the giving of notice or
both would constitute a material breach or default by a Seller or the Indian
Subsidiary, as applicable, or to the Knowledge of the Sellers any other party
thereunder.  As of the date of this Agreement, no party to any of the
Purchased Contracts or Indian Material Contracts has exercised any termination
rights with respect thereto, and no such party has given notice of any
significant dispute with respect to, or any intention to terminate, any
Purchased Contract or Indian Material Contract.  The Sellers have
delivered to Purchaser true, correct and complete copies of all of the Purchased
Contracts and Indian Material Contracts, together with all amendments,
modifications or supplements thereto.

     

    SECTION
3.9.   Legal
Proceedings.  Except as set forth on Section 3.9 of the
Sellers Disclosure Schedule, (a) there are no material Legal
Proceedings pending or, to

     

    


    
      
        
           


        

        
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    the
Knowledge of the Sellers, threatened against either of the Sellers (with respect
to the Mortgage Business), the Indian Subsidiary or the Acquired Assets;
(b) neither of the Sellers nor the Indian Subsidiary is subject to any
outstanding Order which has had or would reasonably be expected to have a
Material Adverse Effect or could reasonably prevent the consummation of the
transactions contemplated by this Agreement, and (c) there are, to the
Knowledge of the Sellers, no facts or circumstances that are likely to give rise
to any Legal Proceedings that would be required to be disclosed pursuant to
clauses (a) or (b) above.  There are no Legal Proceedings pending, or
to the Knowledge of the Sellers, threatened against either of the Sellers or the
Indian Subsidiary that question the legality of the transactions contemplated by
this Agreement.

     

    SECTION
3.10.   Intellectual
Property.

     

    (a) The
Sellers or the Indian Subsidiary own all right, title and interest in and to, or
have the right to use and transfer its interest in, the Intellectual Property
listed on Section 3.10(a) of the
Sellers Disclosure Schedule (the “Purchased
IP”).

     

    (b) The
Sellers or the Indian Subsidiary own all right, title and interest in and to, or
have the right to use and transfer its interest in, information technology and
computer systems listed on Section 3.10(b) of the
Sellers Disclosure Schedule (the “Purchased IT
Systems”).  Except as set forth on Section 3.10(a) and (b)
of the Sellers Disclosure Schedule, the Sellers or the Indian Subsidiary
exclusively own all right, title and interest in and to, or have the right to
use and transfer its interest in, the Purchased IP and the Purchased IT
Systems.

     

    (c) None of
the Purchased IP nor the operation or conduct of the business of the Indian
Subsidiary or the Mortgage Business infringes, misappropriates, or otherwise
violates any material Intellectual Property right of any Person.  To
the Knowledge of the Sellers, no Person is infringing, misappropriating, or
otherwise violating (or has infringed, misappropriated or otherwise violated)
any Purchased IP.

     

    (d) The
Sellers and their Affiliates have the right to grant the rights and licenses
granted under the Software License Agreement.  None of the Licensed
Intellectual Property (as defined in the Software License Agreement) infringes,
misappropriates or otherwise violates any Intellectual Property right of any
Person.

     

    SECTION
3.11.   Real
Property.

     

    (a) The
Sellers have, in all material respects, a valid and subsisting leasehold estate
in and the right to quiet enjoyment of the Leased Premises for the full term of
the Purchased Real Property Leases, subject only to rights of subtenants
pursuant to valid sublease agreements and to the terms and conditions of the
Purchased Real Property Leases.  The Sellers are not in material
default under, and there are no outstanding notices of material default or
termination under, any of the Purchased Real Property Leases, and at the
Closing, there shall not exist a material default or an event which, with the
passage of time or the giving of notice or both, would constitute a

     

    


    
      
        
           


        

        
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    material
default on the part of the Sellers or, to the Knowledge of Sellers, the other
parties thereto.  The Sellers have made available to Purchaser true
and correct copies of each Purchased Real Property Lease, together with all
amendments, renewals, extensions or waivers thereof.  No Seller owes
any brokerage commission with respect to any such leased space.  The
Sellers hold good, marketable fee simple title to that portion of the premises
in Horsham, PA that will be leased to the Purchaser pursuant to the Horsham
Lease Agreements (the “Horsham
Premises”).

     

    (b) The
Indian Subsidiary does not own any real property.  The Indian
Subsidiary has in all material respects a valid and subsisting leasehold estate
in and the right to quiet enjoyment of the leased real properties (the “Indian Premises”)
subject to the lease agreement set forth on Section 3.11(b) of the Sellers
Disclosure Schedule (such leases the “Indian Subsidiary
Leases”) for the full term thereof, subject to rights of subtenants and
to the terms and conditions of the leases and subleases set forth on Section 3.11(b) of the
Sellers Disclosure Schedule.

     

    SECTION
3.12.   Environmental
Matters.

     

    (a) There are
no pending private or governmental claims, citations, complaints, notices of
violation or letters made, issued to or, to the Knowledge of Sellers, threatened
against any of the Sellers in respect of the Leased Premises, the Horsham
Premises or the Indian Premises by any Governmental Authority or private or
other party for the impairment or diminution of, or damage, injury or other
adverse effects to, the environment or public health resulting from either
Seller’s use or operation of any the Leased Premises, Horsham Premises or the
Indian Premises, or asserting or seeking recovery for any violation of or any
liability or obligation under Environmental, Health and Safety
Requirements.

     

    (b) Except
for non-compliance that would not reasonably be expected to result in the
Purchaser or the Indian Subsidiary incurring material Liabilities under
Environmental, Health and Safety Requirements, the Sellers are, and at all
relevant times since March 23, 2006 have been, in material compliance with
Environmental, Health, and Safety Requirements in respect of the Leased
Premises, the Horsham Premises and the Indian Premises, which compliance
includes obtaining, maintaining and complying with all material environmental
permits or other authorizations required under Environmental, Health and Safety
Requirements.

     

    (c) To the
Knowledge of Sellers, there are no current facts, circumstances or conditions
arising out of or relating to the Leased Premises, the Horsham Premises or the
Indian Premises that would reasonably be expected to result in the Purchaser or
the Indian Subsidiary incurring material Liabilities under Environmental, Health
and Safety Requirements.

     

    (d) The
Sellers have made available for inspection by the Purchaser true and correct
copies of all material environmental reports, assessments and investigations
related to the Leased Premises, the Horsham Premises or the Indian

     

    


    
      
        
           


        

        
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    Premises
and all material correspondences related to material Liabilities or potentially
material Liabilities under Environmental, Health and Safety Requirements to the
extent such materials are in the possession, custody or control of the
Sellers.

     

    (e) This
Section 3.12 contains the sole and exclusive representations and warranties
of Sellers with respect to any environmental, health, or safety matters,
including any arising under any Environmental, Health, and Safety
Requirements.

     

    SECTION
3.13.   Licenses; Compliance with
Laws.  Section 3.13 of the
Sellers Disclosure Schedule contains a true and complete list of all
material Licenses required by Law or any Governmental Authority to own and
operate the Acquired Assets and otherwise engage in the Mortgage Business (the
“Business
Licenses”).  Except as set forth on Section 3.13 of the
Sellers Disclosure Schedule:

     

    (a) each
Business License is, and at all relevant times since March 23, 2006 has been,
held by the Sellers and the Indian Subsidiary and is valid, binding and in full
force and effect;

     

    (b) neither
of the Sellers nor the Indian Subsidiary has received any written notice that it
is in default under, or in violation of the terms of, any Business License, and
to the Sellers’ Knowledge, no suspension or cancellation or restriction of any
such Business License has been threatened;

     

    (c) neither
of the Sellers nor the Indian Subsidiary is in material default under or in
material violation of the terms of any Business License;

     

    (d) Capmark
Finance is, and at all relevant times since March 23, 2006 has
been:  (i) a Fannie Mae approved DUS lender and seller/servicer,
(ii) an FHA/MAP approved mortgagee eligible to originate, purchase, hold,
sell and service FHA insured Mortgages, (iii) a Freddie Mac approved
program plus seller/servicer, and (iv) a Ginnie Mae approved issuer of
mortgage backed securities guaranteed by Ginnie Mae;

     

    (e) since
March 23, 2006, the Sellers have not received any written notification from
Fannie Mae, HUD, Freddie Mac or Ginnie Mae that any Seller is not in compliance
with all requirements for maintaining the approved status set forth in
Section 3.13(d) above other than notifications which have been withdrawn;
and

     

    (f) since
March 23, 2006, each of the Sellers and the Indian Subsidiary has operated the
Mortgage Business in material compliance, and is in compliance in all material
respects, with all requirements of Law, the Mortgage Programs, the Mortgage
Program Sponsors applicable to the Mortgage Business, the ownership and
operation of the Acquired Assets and the operations of the Indian Subsidiary,
and neither Seller nor the Indian Subsidiary has received any written notice of
or been charged with (or, to the Seller’s Knowledge, is under investigation with
respect to) any material violation of Law.

     

     

     

    
      
         

      

      
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    SECTION
3.14.   Employee Benefit
Plans.

     

    (a) Section 3.14(a) of the
Sellers Disclosure Schedule contains a list of all “employee benefit
plans” (as defined in Section 3(3) of ERISA), each severance,
incentive or equity incentive plan, program, agreement or arrangement, and all
other material employee compensation and fringe benefit plans or arrangements,
other than Non-U.S. Benefit Plans, which are sponsored or contributed to by the
Sellers for the benefit of Business Employees (the “Benefit
Plans”).  With respect to each Benefit Plan, true and complete
copies of the following documents have been furnished to the Purchaser or were
made available for inspection by the Purchaser prior to the date of this
Agreement, to the extent, in each case, that such documents exist:
(i) current plan documents and plan amendments; (ii) current summary
plan descriptions, if any; (iii) the most recent tax qualified
determination letters, if any, received from (or applications pending with) the
IRS; and (iv) the most recent Form 5500 Annual Reports, if
any.

     

    (b) Each
Benefit Plan with respect to which the Purchaser may have any Liabilities has
been maintained and administered by the Sellers in compliance, in all material
respects, with its terms and with the requirements of applicable Law, including
ERISA and the Code.

     

    (c) To the
Knowledge of the Sellers, there are no investigations or termination proceedings
by any Governmental Authority or other claims (except for routine claims for
benefits), suits or proceedings against or involving any Benefit Plan which
would reasonably be expected to result in a material Tax Liability or
penalty.

     

    (d) Neither
of the Sellers has been required in the past six (6) years or is required
currently to contribute to any “multiemployer plan”
(as defined in Section 3(37) of ERISA) with respect to the Business
Employees.

     

    (e) All
contributions to the Benefit Plans that were required to be made or accrued in
accordance with such Benefit Plans or any applicable Law have been timely made
or accrued.

     

    (f) Except as
set forth on Section 3.14(f) of the
Sellers Disclosure Schedule, the Sellers do not maintain any Benefit
Plans (i) pursuant to the Laws of a country other than the United States or
(ii) that benefit any individual whose principal place of employment is
outside of the United States (each a “Non-U.S. Benefit
Plan”).  To the Knowledge of the Sellers, each Non-U.S. Benefit
Plan has been maintained in compliance, in all material respects, with its terms
and the requirements of applicable Laws.

     

    (g) Sellers
have received a timely favorable determination letter, or are entitled to rely
on a timely opinion letter, from Internal Revenue Service with respect to the
Sellers’ tax-qualified 401(k) plan and, to the Knowledge of Sellers, no
circumstances exist which would reasonably be expected to result in the
disqualification of such 401(k) plan.

     

    


    
      
        
           


        

        
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    (h) The
Sellers have provided to the Purchasers with respect to each of the Business
Employees a schedule of the base salary (the “Base Salary Amount”)
and the incentive and retention arrangements (the “Retention Bonus
Amount”) and all terms and conditions thereof (including payment
conditions, obligations and schedules).

     

    SECTION
3.15.   Labor
Relations.  The Sellers, to the extent related to the Business
Employees, (a) are not a party to any collective bargaining agreement or other
labor union Contract applicable to persons employed by the Sellers and, to the
Knowledge of Sellers, there are no organizational campaigns, petitions or other
unionization activities focusing on persons employed by the Sellers which seek
recognition of a collective bargaining unit, and (b) are not subject to any
strikes, slowdowns or work stoppages pending or, to the Knowledge of Sellers,
threatened between either Seller and any group of its Business
Employees.

     

    SECTION
3.16.   Financial
Matters.

     

    (a) The
financial results in respect of the North American Servicing and North American
Lending and Mortgage Banking Business segments of the Parent and its
consolidated subsidiaries for the years ended December 31, 2006, 2007 and 2008
and for the six-month period ended June 30, 2009 contained in the Parent’s
reports on Forms 10-K and/or reported on the Parent’s website were prepared in
accordance with GAAP (except as permitted by the rules and regulations of the
Securities and Exchange Commission) and fairly present in all material respects
in accordance with applicable requirements of GAAP (subject to normal year-end
audit adjustments) the segment financial information with respect to such
segments for the periods presented therein.

     

    (b) The
unaudited balance sheet of the Indian Subsidiary as of July 31, 2009 attached to
this Agreement as Schedule 3.16(b)
presents fairly in all material respects the financial condition of the Indian
Subsidiary as of such date.  As of the Closing Date, the Indian
Subsidiary shall not have any Liabilities required by GAAP to be reflected on a
balance sheet of the Indian Subsidiary other than those (1) reserved
against or reflected on the unaudited balance sheet of the Indian Subsidiary as
at July 31, 2009 (the “Balance Sheet Date”),
(2) incurred in the Ordinary Course of Business since the Balance Sheet
Date or (3) that are not material.

     

    SECTION
3.17.   Taxes.

     

    (a) To the
Knowledge of the Sellers, there are no material non-payments, deficiencies or
assessments of material Tax owed by the Sellers.

     

    (b) There is
no ongoing or pending audit or investigation of the Sellers by any Taxing
Authority (including receipt by the Sellers of any written notice from any
Taxing Authority that it intends to conduct such an audit or investigation) with
respect to a material Tax item of the Sellers arising from the Mortgage Business
or the Acquired Assets, which Tax item would reasonably be expected to
materially adversely affect the

     

    


    
      
        
           


        

        
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    Purchaser
for any taxable period (or portion thereof) beginning on or after the Closing
Date.

     

    (c) All
material Tax Returns required to be filed by the Indian Subsidiary have been
duly and timely filed (taking into account applicable extension periods) with
the appropriate Taxing Authority, all such material Tax Returns are true,
complete and correct in all material respects, and all material Taxes owed by
the Indian Subsidiary have been fully and timely paid.

     

    (d) No
Acquired Asset is a contract, agreement, plan or arrangement covering any person
that, individually or collectively, could give rise to the payment of any amount
that would not be deductible by the Purchaser, the Seller or the Indian
Subsidiary by reason of Section 280G of the Code or be subject to Section 4999
of the Code.

     

    (e) None of
the Sellers is a “foreign person” within the meaning of Section 1445 of the
Code.

     

    (f) None of
the Acquired Assets is an equity interest in an entity taxable as a corporation
(other than the Purchased Equity Interest), partnership, trust or real estate
mortgage investment conduit for U.S. federal income tax purposes.

     

    (g) Except as
disclosed on Section 3.17(g) of the
Sellers Disclosure Schedule, the Indian Subsidiary has not executed or
entered into any agreement with, or obtained any consents or clearances from,
any Taxing Authority, or has been subject to any ruling guidance specific to the
Indian Subsidiary, that would be binding on the Purchaser for any taxable period
(or portion thereof) beginning after the Closing Date.

     

    SECTION
3.18.   Purchased and Serviced
Loans.

     

    (a) Books and
Records.  The Sellers have made available to the Purchaser true
and complete copies of all Servicing Agreements and all material amendments
thereto.

     

    (b) Mortgage Loan
Compliance.  Each Loan Application, Committed Loan, and
Purchased Loan, including in each case as applicable the related application and
loan documents, is in compliance in all material respects with all applicable
Laws and guidelines, procedures, rules, regulations and other requirements of
the Mortgage Programs and Mortgage Programs Sponsors, and, where applicable, HUD
Mortgage Insurance is in full force and effect with respect to such Purchased
Loan.  The Sellers, and to their Knowledge, any predecessors in
interest, have at all times complied in all material respects with all
applicable guidelines, procedures, rules, regulations and other requirements of
the Mortgage Programs, the Mortgage Program Sponsors, Government Authorities and
the Law, relating in each case to the origination, underwriting and servicing of
each Purchased Loan, and each Purchased Loan complied in all
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    respects
with Sellers’ underwriting policies in effect as of the origination date of each
such Purchased Loan.

     

    (c) No
Recourse.  Except for the obligations to participate in loss
sharing under the Fannie Mae Mortgage Program and participate in pass through
amounts with respect to Mortgages with HUD Mortgage Insurance backing securities
guaranteed by Ginnie Mae, obligations to make Advances and Liabilities arising
from a failure to perform obligations under the relevant Purchased Loans and the
Servicing Agreements, no Seller is subject to any recourse, repurchase or
indemnification obligation with respect to the Purchased Loans or Serviced Loans
that would constitute an Assumed Liability.

     

    (d) Licensing and
Approvals.  The Sellers, and to the Knowledge of the Sellers,
any predecessor in interest, have at all relevant times been (i)  in
material compliance with all applicable licensing requirements of the state in
which the Mortgaged Property relating to a Purchased Loan is located, and
(ii) duly organized and qualified to do business under the laws of such
states, except (in the case of this clause (ii)) where the failure to be so
qualified would not reasonably be expected to have a Material Adverse
Effect.

     

    (e) Commitments.  There
exists a binding Contract providing for the purchase of each Purchased Loan (and
each mortgage loan subject to a Loan Commitment) by an Investor or Mortgage
Program Sponsor, or (with respect to Loan Commitments) there are conditions to
the funding of the mortgage loan subject to such Loan Commitment that such a
Contract exist, and, except for mortgage loans subject to a Loan Commitment
where no such Contract exists, each such Contract is in full force and
effect.  Each Purchased Loan and Loan Commitment complies or will
comply with all applicable guidelines, procedures, rules, regulations and other
requirements of the applicable Mortgage Program Sponsor in all material
respects.  No Investor or Mortgage Program Sponsor has, to the
Knowledge of Sellers, threatened not to purchase any Purchased Loan in
accordance with such Contracts.

     

    (f) Funding;
Reimbursement.  Except for the funding of any Committed Loan,
or the funding of any Purchased Loan which contemplates the periodic fundings of
advances for construction or rehabilitation and renovation or improvements, the
Sellers are under no obligation to make any future advance to any mortgagor
under any Purchased Loan or Committed Loan.

     

    (g) Advances.  Each
outstanding Advance has been made by Sellers in material compliance with the
requirements of the applicable Servicing Agreements.  Each Servicing
Agreement that requires a Seller to make an Advance incorporates a limitation on
the Servicer’s obligation to make a nonrecoverable advance, as defined in the
Servicing Agreement.  Each such Servicing Agreement also provides a
mechanism to recover Advances from certain pool resources, including recoveries
related to the applicable Serviced Loan.  Each Servicing Agreement
also provides a mechanism to recover nonrecoverable advances on a priority basis
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    proceeds
of the applicable loan or underlying collateral itself if such proceeds are
insufficient to recover such nonrecoverable advance.

     

    (h) Enforceability.  Each
Purchased Loan is evidenced by a promissory note or other evidence of
indebtedness and is secured by a duly recorded first priority Mortgage on the
real property and improvements described in or covered by the related
Mortgage.  With respect to each Purchased Loan, each note, Mortgage
and related document, as applicable, has been duly and validly executed by the
Sellers (or Capmark Bank) and, to the Knowledge of the Sellers, by the other
parties thereto, and each is the legal, valid and binding obligation of the
maker thereof, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws related to or affecting the rights of
creditors generally and by general principles of equity.  No Purchased
Loan is subject to any valid offset, defense or counterclaim with respect
thereto.

     

    (i) No Breach.  The
Sellers have not breached in any material respect their obligations under any
Servicing Agreement which breach remains uncured, and each Purchased Loan and
Serviced Loan has been serviced by the Sellers in all material respects in
accordance with applicable Law.  The economic value that the Sellers
enjoy from the Custodial Accounts do not violate any applicable Laws as
currently in effect or, in any material respect, any Mortgage Program or
Investor guidelines, procedures, rules, regulations or other requirements as
currently in effect.

     

    (j) No HUD Co-Insured Loans; No
Single-Family Loans.  None of the Serviced Loans or Purchased
Loans covered by HUD Mortgage Insurance is a loan co-insured by HUD under the
National Housing Act.  None of the Serviced Loans or Purchased Loans
is secured by single family (i.e., one to four family) residential real
property.

     

    (k) No Delinquencies or
Bankruptcy.  There are no payment delinquencies under any
Purchased Loan.  Neither of the Sellers has received, with respect to
any Purchased Loan, any:  (i) written notice of any event (other
than payments due but not yet delinquent) that, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach an event of acceleration, (ii) any pending request
for material modification, extension, workout, foreclosure or deed in lieu of
foreclosure, or (iii) any notice that any Borrower is, or is about to
become, a debtor in any state or federal bankruptcy or insolvency or similar
proceeding.

     

    (l) Whole Loans.  Each
Purchased Loan is a “whole loan” as such terms is used in the
industry.

     

    (m) Inquiries.  Except
as disclosed on Section 3.18(m) of the
Sellers Disclosure Schedule, within the past three (3) years, there have
been no audits, inquiries or investigations of the Sellers by any Mortgage
Program Sponsor or Investor, the result of which claimed a material failure to
comply with applicable Mortgage Program or

     

    


    
      
        
           


        

        
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    Investor
requirements or the Law, or resulted in (i) a request for the repurchase of
any Purchased Loan or Serviced Loan, (ii) any indemnification obligation or
(iii) the imposition of any penalty or other sanction in connection
therewith.

     

    SECTION
3.19.   Servicing Agreements and
Securitizations.

     

    (a) Summary of Servicing
Agreements.  The information set forth in Schedule 1.1(vi),
which identifies all Servicing Agreements, is true, complete and correct in all
material respects as of the date of this Agreement.

     

    (b) Representations and
Warranties.  The representations and warranties of the Sellers
and their Affiliates contained in Servicing Agreements were true and correct
when made and repeated.

     

    (c) Servicing Practices. The
servicing practices used by the Sellers in connection with the Servicing
Agreements are in compliance in all material respects with the requirements of
the related Servicing Agreements and federal, state and local laws, rules and
regulations.

     

    (d) Covenants.  The
Sellers have complied in all material respects with each of their respective
covenants and agreements set forth in the Servicing Agreements, except for such
noncompliance as would not have a Material Adverse Effect.

     

    (e) Defaults.  Except
as set forth in Section 3.19(e) of the
Sellers Disclosure Schedule, no servicer default, servicing termination,
or similar event under any Servicing Agreement and no event that with the giving
of notice or the passage of time or both would constitute any such event, has
occurred and is continuing as of the date of this Agreement and as of the
Closing Date, and the Sellers are not aware of any allegation that any such
event has occurred and is continuing as of the date of this Agreement or as of
the Closing Date, except, in each case, any such event that shall not cause a
Material Adverse Effect; provided that, for purposes of
this representation and warranty, any downgrade or withdrawal of the servicer
rating of a Seller between the date of this Agreement and the Closing Date,
shall not, in and of itself, constitute a Material Adverse Effect.

     

    (f) SEC Reporting.  In
connection with the Securitizations registered under the Securities Act, the
Sellers have provided all servicer reports that were required to be prepared by
the applicable Seller pursuant to any Servicing Agreement that were to be
included in any Form 8K (and/or Form 10D) or Form 10K to the party designated
for receipt in the applicable Servicing Agreement on a timely basis and to the
Knowledge of the Sellers, the information in such reports, taken as a whole, did
not contain an untrue statement of material fact or omit to state a material
fact required to be included in such servicer report for the period covered by
such servicing report, except to the extent any failure would not have a
Material Adverse Effect; provided that no representation is made hereunder with
respect to information provided by any Person other than any of the
Sellers.  The appropriate officer of the applicable Seller has
provided the certification

     

    


    
      
        
           


        

        
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    with
respect thereto required by Section 302 of the Sarbanes Oxley Act of 2002 and
Rules 13a, 14, or 15d, as applicable, under the Exchange Act Rules.

     

    (g) Proceedings.  There
are no pending or, to the Knowledge of the Sellers, threatened proceedings,
lawsuits, or administrative actions or investigations alleging violations by a
Seller of the Securities Act, the Exchange Act, the Securities Act Rules or the
Exchange Act Rules relating to any Securitizations.

     

    (h) Amendments.  Except
as set forth on Schedule 1.1(vi),
no provision of any Servicing Agreement has been amended, modified, waived or
supplemented since the original date thereof.

     

    (i) Securities
Offerings.  To the Knowledge of the Sellers, any information
prepared by or at the direction of the Sellers and included in any prospectuses
and any other offering documents or registration statements for the offering of
securities, and any amendments or supplements thereto, distributed, delivered or
filed in connection with Securitizations, as of their dates, did not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.

     

    SECTION
3.20.   Disclaimer of Other
Representations and Warranties.  In connection with the
transactions under this Agreement, the Sellers are not making any representation
or warranty to the Purchaser whatsoever, express or implied, except those
representations and warranties of the Sellers explicitly set forth in this
Agreement or in the Sellers Disclosure Schedule or in any certificate or other
Transaction Document contemplated hereby and delivered by the Sellers in
connection herewith.

     

    ARTICLE
IV

    REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER

     

    The
Purchaser represents and warrants to the Sellers that the statements contained
in this Article IV are correct and complete, except as set forth in the
disclosure schedule delivered by the Purchaser accompanying this Agreement with
specific reference to the applicable section of this Article IV to which the
disclosures on such schedule relate (the “Purchaser Disclosure
Schedule”).

     

    SECTION
4.1.   Organization and
Qualification.  The Purchaser is a limited liability company
duly organized, validly existing, and in good standing under the Laws of the
state of its jurisdiction of formation, with all requisite power and authority
to own, operate and lease its assets and properties and to carry on its business
as it is now being conducted.

     

    


    
      
        
           


        

        
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    SECTION
4.2.   Authorization.

     

    (a) The
Purchaser has all necessary limited liability company power and authority to
execute and deliver this Agreement and the other Transaction Documents and to
perform its obligations hereunder and thereunder.

     

    (b) This
Agreement has been duly and validly authorized, executed and delivered by the
Purchaser, and each of the other Transaction Documents, when so executed and
delivered by the Purchaser, will have been duly and validly authorized, executed
and delivered by the Purchaser, and assuming the due authorization, execution
and delivery by the other Parties to this Agreement and the Transaction
Documents, this Agreement constitutes, and the other Transaction Documents when
so executed and delivered will constitute, a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its respective
terms, except to the extent that such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or
hereafter in effect relating to creditors’ rights generally, and to the extent
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.

     

    SECTION
4.3.   No
Violation.  Except as set forth in Section 4.3 of the
Purchaser Disclosure Schedule, none of the execution and delivery of this
Agreement or the other Transaction Documents by the Purchaser, the performance
by the Purchaser of its obligations hereunder and thereunder nor the
consummation by the Purchaser of the transactions contemplated hereby and
thereby will (a)  conflict with or result in a breach of any provision of
its Organizational Documents, (b) conflict with or result in a breach of,
or constitute a default (with or without due notice or lapse of time or both) or
result in or give any Person any right of termination, cancellation,
acceleration or modification under the terms, conditions or provisions of any
note, bond, Mortgage, indenture, or any material License, lease or Contract to
which the Purchaser is a party, or (c) violate, in any material respect,
any Law or Order of any Governmental Authority.

     

    SECTION
4.4.   Consents and
Approvals.  Except as set forth in Section 4.4 of the
Purchaser Disclosure Schedule, no filing or registration with, notice to
or permit, authorization, waiver, consent or approval of any Person or any
Governmental Authority or Mortgage Program Sponsor is necessary for the
consummation by the Purchaser of the transactions contemplated by this Agreement
and the other Transaction Documents other than (a) consents and approvals
of or filings or registrations with the Federal Trade Commission and the DOJ
pursuant to the HSR Act, (b) requirements of federal and state securities
laws, (c) the Required Consents, and (d) consents, registrations,
approvals, authorizations, permits, filings or notifications which, in the
aggregate, are not reasonably likely to have a material adverse effect on the
ability of the Purchaser to consummate the transactions contemplated by this
Agreement.

     

    SECTION
4.5.   Brokers’ Fees and
Commissions.  Neither the Purchaser nor any of its Affiliates
has any liability or obligation to pay any fees or commissions or
any

     

    


    
      
        
           


        

        
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    similar
payment to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which the Sellers could become liable or
obligated.

     

    SECTION
4.6.   Legal
Proceedings.  There are no Legal Proceedings pending or, to the
Knowledge of the Purchaser, threatened against the Purchaser, nor is there any
Order outstanding against or relating to the Purchaser, any of which could have
a material adverse effect upon the Purchaser’s ability to perform its
obligations under this Agreement or any of the other Transaction Documents or
that would prevent the ability of the Purchaser to consummate the transactions
contemplated by this Agreement.

     

    SECTION
4.7.   Purchase for
Investment.  The Purchaser is acquiring the Purchased Equity
Interest for its own account for investment purposes and not with a view toward
or for sale in connection with any distribution thereof.  The
Purchaser has such knowledge and experience in financial and business matters so
as to be capable of evaluating the merits and risks of its investment in the
Purchased Equity Interest.  The Purchaser is an “accredited investor”
as defined in Rule 501 of the Securities Act.  The Purchaser will not,
directly or indirectly, dispose of the Purchased Equity Interest except in
compliance with applicable federal and state and foreign securities
Laws.

     

    SECTION
4.8.   Inspections; Limitation of
Sellers Warranties.  The Purchaser is an informed and
sophisticated participant in the transactions contemplated hereby and has
undertaken such investigation, and has been provided with and has evaluated such
documents and information, as it has deemed necessary in connection with the
execution, delivery and performance of this Agreement.  Except as
otherwise expressly set forth in this Agreement, any Transaction Document, any
certificates delivered pursuant thereto, or the Sellers Disclosure Schedule, the
assets and business of the Sellers and the Indian Subsidiary being acquired by
the Purchaser at the Closing as a result of this Agreement and the transactions
contemplated hereby shall be acquired by the Purchaser on an “as-is, where-is”
basis and in their then present condition, and the Purchaser shall rely solely
upon its own examination thereof and the representations and warranties set
forth in Article III or in the Sellers Disclosure Schedule or in any
certificate or any other Transaction Document delivered by the
Sellers.

     

    SECTION
4.9.   OFAC.  Neither
the Purchaser nor any of its subsidiaries nor, to the knowledge of the
Purchaser, any director, officer, agent, employee or Affiliate of the Purchaser
or any of its subsidiaries (a) is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”),
(b) appears on the Specially Designated Nationals and Blocked Persons List
of OFAC, or (c) is a party with which the Sellers are prohibited to deal
under the Laws of the United States.  The monies used to fund the
purchase of the Acquired Assets are not derived from, invested for the benefit
of, or related in any way to, the governments of, or persons within, any country
(i) under a U.S. embargo enforced by OFAC, (ii) that has been
designated as a “non-cooperative country or territory” by the Financial Action
Task Force on Money Laundering, or (iii) that has been designated by the
U.S. Secretary of the Treasury as a “primary money-laundering
concern.”

     

     

     

    
      
         

      

      
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    ARTICLE
V

    COVENANTS

     

    SECTION
5.1.   Conduct of Business of the
Sellers Prior to the Closing.

     

    (a) Except as
contemplated by this Agreement or with the prior written consent of the
Purchaser (which consent shall not be unreasonably withheld), during the period
from the date of this Agreement to the Closing Date, the Sellers shall, and
shall cause the Indian Subsidiary to, (i) conduct the Mortgage Business in
the Ordinary Course of Business and use commercially reasonable efforts to
preserve substantially intact the Mortgage Business, the Acquired Assets and the
Properties of the Indian Subsidiary, (ii) perform the obligations of
Sellers under the Servicing Agreements, including funding Advances, and
(iii) maintain their respective books, accounts and records in respect of
the Mortgage Business, the Acquired Assets and the Properties of the Indian
Subsidiary in the Ordinary Course of Business.

     

    (b) Except as
set forth on Schedule 5.1(b)
or as otherwise provided in this Agreement, the Sellers shall not, and shall
cause the Indian Subsidiary not to, take any of the following actions, prior to
the Closing, without the prior written consent of the Purchaser (which consent
shall not be unreasonably withheld):

     

    (i) issue,
sell or pledge, or authorize or propose the issuance, sale or pledge of
additional shares of capital stock of the Indian Subsidiary of any class or
interests, or securities convertible into any such shares, or any rights,
warrants or options to acquire any such shares or other convertible
securities;

     

    (ii) redeem,
purchase or otherwise acquire any outstanding shares of  capital stock
of the Indian Subsidiary;

     

    (iii) propose
or adopt any amendment to the Organizational Documents of the Indian
Subsidiary;

     

    (iv) declare,
set aside or pay any dividend or other distribution in respect of the capital
stock of the Indian Subsidiary, other than in cash;

     

    (v) except in
the Ordinary Course of Business or with respect to capital projects approved
prior to the date of this Agreement, enter into any agreement or commitment
involving an aggregate capital expenditure or commitment on the part of the
Indian Subsidiary exceeding $100,000;

     

    (vi) (A) sell,
lease, transfer or otherwise dispose of any Purchased Contracts or, except in
the Ordinary Course of Business, any other Acquired Assets or any Properties of
the Indian Subsidiary to the extent the book value of such Acquired Assets
and/or Properties would exceed $100,000 individually or in the aggregate, or
(B) mortgage, pledge, encumber, or impose or suffer to be imposed any
material Liens (other than Permitted Liens) on, or

     

    


    
      
        
           


        

        
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    license
or lease, any material Acquired Assets or, in the case of the Indian Subsidiary,
its Properties;

     

    (vii) (A) enter
into material Contracts with respect to the Mortgage Business, except Contracts
made in the Ordinary Course of Business or Contracts not reasonably expected to
require the payment by a Seller of more than $1,000,000 in the aggregate in any
year or (B) amend or modify, in each case in any material respect,
terminate (partially or completely), grant any material waiver or give any
material consent under, any material Contract with respect to the Mortgage
Business, except in the Ordinary Course of Business;

     

    (viii) other
than in the Ordinary Course of Business, cancel or compromise any debt or claim,
or waive, or commit to waive or release any right, in an amount exceeding
$10,000 in respect of any individual Purchased Loan;

     

    (ix) breach or
default under, in each case in any material respect, or take or fail to take any
action that (with or without notice or lapse of time or both) would constitute a
material breach of, or default under, any term or provision of any material
Contract or License relating to the Mortgage Business;

     

    (x) (A) with
respect to the Indian Subsidiary, acquire (by merger, amalgamation,
consolidation, acquisition of equity securities or assets, or other business
combination) any corporation, partnership, limited liability company or other
business organization or division thereof, or (B) acquire any amount of
assets other than (1) any Mortgaged Property pursuant to the administration
of Purchased Loans in the Ordinary Course of Business and in accordance with the
applicable internal policies of the Sellers and the Indian Subsidiary or
(2) any Properties in the Ordinary Course of Business or (3) any
Properties acquired as a result of any foreclosure, deed-in-lieu of foreclosure
or the exercise of other remedies with respect to any Purchased
Contract;

     

    (xi) with
respect to the Indian Subsidiary, (A) issue any debt securities, or
(B) incur, assume or guarantee, or agree to incur, assume or guarantee, any
indebtedness for borrowed money, other than (1) pursuant to existing
letters of credit or guarantees of letters of credit or (2) in the Ordinary
Course of Business from any of its Affiliates; provided that all such
Indebtedness to Affiliates shall be satisfied or released prior to the
Closing;

     

    (xii) adopt a
plan of complete or partial liquidation, arrangement, dissolution, merger,
amalgamation, consolidation, restructuring, recapitalization or other
reorganization of the Indian Subsidiary;

     

    (xiii) make any
material amendment to any Purchased Contract;

     

    (xiv) change
any method of accounting or any accounting policy, except as may be required by
applicable Law or GAAP;

     

    


    
      
        
           


        

        
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    (xv) make any
material change in the tax accounting policies or procedures pursuant to which
Purchased Contracts entered into by any of the Sellers or the Indian Subsidiary
are characterized for tax purposes;

     

    (xvi) with
respect to the Indian Subsidiary, (A) make, change or revoke any Tax
election of the Indian Subsidiary, settle or compromise any Tax claim or
liability of the Indian Subsidiary, or change (or make a request to any taxing
authority to change) any material aspect of the Indian Subsidiary’s method of
accounting for Tax purposes, or (B) prepare or file any material Tax Return
of the Indian Subsidiary (or any amendment thereof) unless such Tax Return shall
have been prepared in a manner consistent with past practice (unless otherwise
required by applicable Law);

     

    (xvii) with
respect to the Indian Subsidiary, assume, guarantee, endorse or otherwise agree
to become responsible for payment or performance obligations of any other
Person;

     

    (xviii) except in
connection with or under any Mortgage Program, acquire from any third party any
portfolio of Purchased Loans;

     

    (xix) deviate
from or change in any material respect, its standard forms of documentation used
in or by the Mortgage Business;

     

    (xx) enter
into any other material agreements, commitments or Contracts with respect to the
Mortgage Business or the Indian Subsidiary, except agreements, commitments or
Contracts made in the Ordinary Course of Business;

     

    (xxi) (A) increase
in any material respect the compensation payable or to become payable to any
Business Employee, or (B) increase the coverage or benefits available under
any (or create any new) Benefit Plan, other than, in the case of clauses (A) and
(B), (1) in the Ordinary Course of Business, (2) as required by
applicable Laws, or (3) as contemplated by this Agreement;

     

    (xxii) settle,
release or forgive any material Legal Proceedings relating to the Acquired
Assets, Assumed Liabilities or Properties of the Indian Subsidiary;

     

    (xxiii) issue any
broadly distributed communication of a general nature to employees (including
general communications relating to benefits and compensation) or customers of
the Mortgage Business or the Indian Subsidiary without the prior approval of
Purchaser, except for communications in the Ordinary Course of Business that do
not relate to the transactions contemplated by this Agreement;

     

    (xxiv) sell,
dispose of, or lease the Horsham Premises or the Leased Premises;
or

     

    


    
      
        
           


        

        
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    (xxv) enter
into an agreement or commitment (other than as specifically contemplated by this
Agreement) to do any of the things prohibited by the preceding clauses (i)
through (xxiv) of this Section 5.1(b).

     

    (c) Except as
required by Law or the Mortgage Program Sponsors, between the date of this
Agreement and the Closing, the Sellers (i) shall not (with respect to the
Mortgage Business) change in any material respect its credit, pricing policies
or collateral eligibility standards or credit quality classifications and
(ii) shall approve credit applications with respect to the Mortgage Banking
Business in compliance, in all material respects, with standards of evaluating,
originating, underwriting and funding new business applied in the Ordinary
Course of Business.

     

    (d) The
Sellers shall provide Purchaser promptly with copies of any notices sent to or
received from any Governmental Authority, or relating to the failure or
cessation of service, or litigation in connection with the Horsham Premises or
the Leased Premises.

     

    SECTION
5.2.   Access to
Information.

     

    (a) Between
the date of this Agreement and the Closing Date, upon reasonable notice and at
reasonable times without significant disruption to the businesses of the Sellers
or the Indian Subsidiary, the Sellers will give, and Parent will cause the
Indian Subsidiary to give, the Purchaser and its Representatives reasonable
access to all offices, properties, facilities, personnel, books and records,
Contracts, and documents of or pertaining to the Mortgage Business (and shall
provide the Purchaser with reasonable access to Business Employees), and will
permit the Purchaser to make and will fully cooperate with regard to such
inspections as it may reasonably require.  The Purchaser will treat
and hold all information it receives from either of the Sellers or the Indian
Subsidiary in the course of the reviews contemplated by this Section 5.2 as
Confidential Information and will not use any of the Confidential Information
except in connection with this Agreement, and, if this Agreement is terminated
for any reason whatsoever, will return to the Sellers or the Indian Subsidiary,
as applicable, all tangible embodiments (and all copies) of the Confidential
Information that are in its possession.

     

    (b) Following
the Closing, each Party shall afford the other Party and its Representatives
during normal business hours, reasonable access to the Mortgage Business Books
and Records in its possession with respect to periods on or prior to the Closing
and the right to make copies and extracts therefrom, to the extent that such
access may be reasonably required by the requesting Party in connection with
(i) compliance with the requirements of Law or any Governmental Authority
or Mortgage Program Sponsor, (ii) any actual or threatened Legal
Proceedings, (iii) the calculation of the Adjustment Amount, the Accruals,
the Retention Adjustment Amount, the Servicing Adjustment Amount or the June
Data Tape Adjustment Amount (or the confirmation or the resolution of any
dispute in respect of the calculation thereof) in accordance with
Section 2.4, or (iv) amounts payable and the calculations of the
amounts under the DUS Note, the Dynex Fannie Mae Note, the Dynex Freddie Mac
Note.  Further each Party

     

    


    
      
        
           


        

        
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    agrees
for a period extending three (3) years after the Closing Date (or for such
longer period as such Party is required to keep books, records and other data
under Law) not to destroy or otherwise dispose of any such books and records
unless such Party shall first offer in writing to surrender such books, records
and other data to the other Parties and such other Parties shall not agree in
writing to take possession thereof during the ten (10) day period after such
offer is made.

     

    (c) If, in
order to properly prepare its financial statements and/or any documents or
reports required to be filed with any Governmental Authority or Mortgage Program
Sponsor, or to fulfill its obligations hereunder, it is necessary that a Party
be furnished with additional information, documents or records relating to the
Mortgage Business not referred to in subsection (b) above, and such information,
documents or records are in the possession or control of any other Party, such
other Party shall use its commercially reasonably efforts to furnish or make
available such information, documents or records (or copies thereof) at the
recipient’s reasonable request and out of pocket cost and
expense.  Any information obtained by either Party in accordance with
this paragraph shall be treated as Confidential Information and held
confidential by such Party in accordance with Section 5.8 and
Section 5.10.

     

    SECTION
5.3.   All Reasonable
Efforts.  Subject to the terms and conditions herein provided,
each of the Parties hereto agrees to use all commercially reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper and advisable under applicable Laws and this Agreement
to consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement, including satisfaction of the Closing conditions
set forth below, and shall not take or fail to take any commercially reasonable
action that could reasonably be expected to result in the non-fulfillment of any
such Closing conditions.  Without limiting the generality of the
foregoing, the Parties agree to commence promptly following the execution and
delivery of this Agreement such commercially reasonable efforts with respect to
obtaining all Required Consents and Licenses, including those described in
Section 5.4, necessary to satisfy such Closing conditions.  If at
any time after the Closing any further commercially reasonable action is
necessary or desirable to carry out the purposes of this Agreement, including
the execution of additional instruments, the Parties shall take all such
necessary action without further consideration.

     

    SECTION
5.4.   Consents and Approvals;
Purchased Contracts.

     

    (a) The
Parties will each cooperate with one another and use all commercially reasonable
efforts to, promptly following the execution and delivery of this Agreement,
prepare all necessary documentation (including furnishing all information
required under the HSR Act or by the Mortgage Program Sponsors), to give any
notices to, to effect promptly all necessary filings and to obtain all necessary
Licenses, consents, approvals, Orders and authorizations of, or any exemptions
by, all third parties, Governmental Authorities and Mortgage Program Sponsors
necessary to consummate the transactions contemplated by this Agreement or the
other Transaction Documents or otherwise reasonably required in connection
therewith.  Without limiting the generality of

     

    


    
      
        
           


        

        
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    the
foregoing, each of the Parties will file any notification and report forms and
related material that it may be required to file with the Federal Trade
Commission and the DOJ under the HSR Act, will use all commercially reasonable
efforts to obtain a waiver from the applicable waiting period, and will make any
further filings pursuant thereto that may be necessary, proper, or advisable in
connection therewith, and comply at the earliest practicable date with any
request of additional information received from the Federal Trade Commission or
the Antitrust Division of the DOJ pursuant to the HSR Act.  Each Party
will keep the other Parties apprised of the status of any inquiries made of such
Party by the Mortgage Program Sponsors or any Governmental Authority or members
of their respective staffs with respect to this Agreement or the transactions
contemplated hereby.

     

    (b) At the
Closing, effective as of the Closing Date, the Sellers shall assign to the
Purchaser all of their rights and obligations (to the extent constituting
Acquired Assets and Assumed Liabilities, respectively) under the Purchased
Contracts.  Notwithstanding the foregoing, to the extent that any
Purchased Contract is not assignable without the consent of a third party, this
Agreement shall not constitute an assignment or an attempted assignment thereof
if such assignment or attempted assignment would constitute a breach thereof or
a default thereunder.  The Sellers and the Purchaser shall use
commercially reasonable efforts to obtain the consent of such third parties to
the assignment of any such Purchased Contract to the Purchaser in all cases in
which such consent is or may be required for such assignment.

     

    (c) For
purposes of this Agreement (including Section 5.3 and this
Section 5.4), neither “commercially reasonable
efforts” nor “commercially reasonable
actions” shall require the payment of any fees or financial
accommodations other than (i) customary regulatory filing fees and
(ii) fees or financial accommodations specifically required by this
Agreement (including Sections 5.4(g)(i) and 10.4) or any Transaction
Document.

     

    (d) If any
such necessary Licenses, consents, approvals, Orders and authorizations of, or
any exemptions by, all third parties, Governmental Authorities and Mortgage
Program Sponsors shall not be obtained by the Closing, the Sellers and the
Purchaser shall cooperate in any reasonable arrangement designed to provide for
the Purchaser (i) the ability to use the Licenses of Sellers to conduct the
Mortgage Business in the same manner and to the same extent as the same was
conducted prior to the date of this Agreement (taking into account the services
provided by Sellers under the Transition Services Agreement) and (ii) the
benefits and obligations intended to be assigned to and assumed by the Purchaser
under the relevant Purchased Contract or License, including enforcement for the
account of the Purchaser (and at the Purchaser’s expense) of any and all rights
of the Sellers against the other party thereto arising out of the breach or
cancellation thereof by such other party or otherwise, provided that no such
arrangement shall be deemed to satisfy the conditions to the obligations of the
Purchaser under this Agreement set forth in Sections 6.1(g) and
(i).

     

    (e) Following
the Closing, in the event any amount due under a Purchased Contract or otherwise
to a Party in accordance with the terms of this

     

    


    
      
        
           


        

        
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    Agreement
or the other Transaction Documents is paid to another Party, such other Party
shall promptly remit such amount to the Party to which such amount was
due.

     

    (f) In the
event of any Insolvency Proceeding in respect of any Seller following the date
of this Agreement, the Sellers shall use commercially reasonable efforts to seek
all required approvals, including the Bankruptcy Court Order, from the
applicable bankruptcy court of the transactions contemplated by this Agreement
and the other Transaction Documents.  The Purchaser agrees that it
will promptly take such actions as are reasonably requested by the Sellers to
assist in obtaining such required approvals.

     

    (g) Purchaser
agrees and acknowledges that Sellers and/or their Affiliates are parties to
Contracts for products, materials and/or services that are used and/or sold by
or provided both to the Mortgage Business and to other businesses (the “Remaining Business”)
of Sellers and/or their Affiliates not included in the Mortgage Business
(collectively, the “Straddle
Contracts”).  The Straddle Contracts that will be included in
the Purchased Contracts (including those Purchased Contracts relating to the
Purchased IT Systems) and assigned to Purchaser are designated with a “...”
on the applicable Sections of the Disclosure Schedules (the “Purchased Straddle
Contracts”).  The Straddle Contracts that are not included in
the Purchased Contracts and will not be assigned by Sellers or their Affiliates
to Purchaser are listed on Section 5.4(g) of the
Sellers Disclosure Schedule (collectively, the “Retained Straddle
Contracts”).  Purchaser, in the case of the Purchased Straddle
Contracts, and Sellers and their Affiliates, in the case of the Retained
Straddle Contracts, shall each use their respective commercially reasonable
efforts to take such commercially reasonable actions as may be reasonably
requested by the other party (the “Seeking Party”), and
to otherwise cooperate with such Seeking Party, in connection with such Seeking
Party’s efforts to enter into a separate agreement (or, with the mutual
agreement of the parties, an amendment) with the other party or parties to any
Straddle Contract (each such party, a “Vendor”) with respect
to the products, materials and/or services covered by such Straddle Contract as
they relate to or are used by the Mortgage Business, in the case of the Retained
Straddle Contracts, or the Remaining Business, in the case of the Purchased
Straddle Contracts.  To the extent the Seeking Party is not able to
enter into a separate agreement, or the parties are unable to enter into a
mutually agreeable amendment, with any Vendor with respect to the products,
materials and/or services covered by a Straddle Contract, including with respect
to Straddle Contracts for which products, materials and/or services are included
in the Services (as defined in the Transition Services Agreement), the
Purchaser, in the case of the Purchased Straddle Contracts, or the Seller, in
the Case of the Retained Straddle Contracts, shall, for a period not to exceed
twelve (12) months following the Closing Date, use commercially reasonable
efforts to provide the Seeking Party with the rights and benefits under such
Straddle Contract to the same extent the Mortgage Business (in the case of the
Retained Straddle Contracts) or the Remaining Business (in the case of the
Purchased Straddle Contracts) enjoyed those rights and benefits prior to the
Closing (whether under the Transition Services Agreement or otherwise),
including obtaining such products, materials and/or services from the Vendor on
behalf of the Seeking Party

     

    


    
      
        
           


        

        
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    under
each Straddle Contract on the same terms as in effect as of the Closing (subject
to the Seeking Party’s agreement to bear, and bearing of, the related costs,
burdens and obligations of such Straddle Contract associated with obtaining such
rights and benefits for the account of the Seeking Party); provided, however, that the
Sellers, on the one hand, and the Purchaser, on the other hand, shall
(i) each pay or satisfy fifty percent (50%) of the consent, sublicening,
assignment and other one-time fees and costs incurred by Purchaser (in the case
of the Purchased Straddle Contracts) or the Sellers and their Affiliates (in the
case of the Retained Straddle Contracts) in connection with the foregoing, and
(ii) comply with all of the terms and conditions of each Straddle Contract
(as applicable) as if the Seeking Party were a party thereto to the extent
required for the applicable Purchaser (in the case of the Purchased Straddle
Contracts) or the Sellers and their Affiliates (in the case of the Retained
Straddle Contracts) to maintain the applicable Straddle Contract and to procure
the goods and/or services on behalf of the Seeking Party under each such
Straddle Contract.

     

    (h) 
 (i)
Pursuant to the rights granted to Capmark Finance under Section 9.3 of the
Contribution Agreement (as hereinafter defined), Capmark Finance shall and
hereby does, subject to the occurrence of the Closing, transfer to Purchaser and
its Affiliates a continuing perpetual, non-exclusive, non-transferable,
unlimited use and unlimited user and user type, non-assessable, irrevocable
(except in the case of a material breach by Purchaser of this Agreement),
worldwide, fully-paid, non-sublicensable, multi-site and enterprise-wide license
(and sublicense with respect to third party software)
to:  (a) use the Software (as defined below) and the related
documentation in the operation of the businesses of Purchaser and its
Affiliates, including to provide imaging services to third party customers of
Purchaser and its Affiliates; (b) at no additional cost, to transfer to,
and operate the Software on, a different operating system and/or on different
equipment in connection with the permitted used described in the preceding
clause (a); (c) make as many copies of the Software and related
documentation as Purchaser deems necessary for production, testing, disaster
recovery, disaster recovery testing, backup, training and education, development
and archival purposes, without expanding the permitted uses described in the
preceding clause (a); and (d) modify and adapt the Software, and to combine
the Software with third party software products, provided that such modified,
adapted and combined versions of the Software or derivative works created
thereby are used within the businesses of Purchaser and its
Affiliates.  Without limiting the generality of the foregoing the term
“enterprise-wide” shall mean the right to use the Software within the entire
spectrum of business and operational activities relating to the businesses of
Purchaser and its Affiliates, now and in the future, directly or
indirectly.  “Software” as used in this Section 5.4(h) shall mean
the Software (as such term is defined in the Contribution Agreement) assigned to
Epitome Systems, Inc. (f/k/a Business Process Technologies, Inc.) (“Epitome”) pursuant to
that certain Asset Contribution Agreement dated as of October 30, 2003 by and
between Epitome Systems, Inc. (f/k/a Business Process Technologies, Inc.) and
Capmark Finance, Inc. (f/k/a GMAC Commercial Mortgage Corporation), as amended
(the “Contribution
Agreement”), including any enhancements thereto as to which Seller has
the right to license, in both object and source code, and shall include any and
all tools, utilities, monitoring software

     

    


    
      
        
           


        

        
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    and other
items used by Epitome to support and maintain the foregoing
Software.  Purchaser and its Affiliates acknowledge and agree that the
license transferred herein shall at all times be subject to the Covenant Not to
Compete set forth in Section 9.1 of the Contribution
Agreement.  Notwithstanding anything herein to the contrary,
(x) Purchaser acknowledges and agrees that Capmark Finance will also retain
its license to the Software as provided for in the Contribution Agreement, and
(y) the license to Purchaser and its Affiliates shall be independent of the
license to Capmark Finance and shall not terminate upon any termination of the
license to Capmark Finance.

     

    (ii)           Capmark
Finance expressly waives and disclaims any right or remedy it may have to
de-install or disable the Software or any portion thereof without due process of
law.  Furthermore, Capmark Finance represents and warrants that it
will not knowingly (which, for purposes herein, shall include any publicly known
Disabling Codes in which there are patches or fixes to correct or ameliorate
such Disabling Codes) or intentionally incorporate or transmit to Purchaser any
virus, timer, clock, counter, time lock, time bomb, Trojan horse, worm, file
infector, boot sector infector or other limiting design, instruction or routine
including surveillance software or routines or data gathering or collecting
software or devices that could, if triggered, erase data or programming, collect
data in a surveillance or other capacity, have an adverse impact on the
Software, or cause the Software to become inoperable or otherwise incapable, in
whole or in part, of being used in the full manner for which the Software was
intended to be used (a “Disabling Code”),
including any limitations that are triggered by, as applicable: (a) the
Software being used or copied a certain number of times, or after the lapse of a
certain period of time; (b) the Software being installed on or moved to a
central processing unit or system that has a serial number, model number or
other identification different from the central processing unit or system on
which the Software originally was installed; or (c) the occurrence or lapse
of any similar triggering factor or event.  If Capmark Finance
introduces a Disabling Code into the Software in breach of this warranty, at its
sole cost and expense, Capmark Finance shall, as applicable: (1) take all
steps necessary to test for the presence of Disabling Codes; (2) furnish to
Purchaser a new copy of the Software without the presence of Disabling Codes;
(3) install and implement such new copy of the Software at Purchaser; and
(4) restore any and all imaged and other data and programming lost by
Purchaser as a result of such Disabling Code.  Capmark Finance makes
no other representations or warranties, whether express, implied or statutory,
regarding or relating to any of the Software or otherwise regarding or relating
to this Agreement, including any implied warranties of merchantability, fitness
for a particular purpose or non-infringement.

    


    (iii)           The
Sellers will use commercially reasonable efforts to cooperate and cause Epitome
to execute a license agreement for the Software with Purchaser containing
commercially reasonable terms and conditions.  Notwithstanding
anything herein to the contrary, the terms and conditions of this
Section 5.4(h) shall be effective as of the Closing, and shall not be
diminished or affected in the event Purchaser and Epitome fail to enter into
such license agreement.

     

     

     

    
      
         

      

      
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    SECTION
5.5.   Public
Announcements.  At all times at, before and after the Closing,
the Purchaser and the Sellers will consult with each other and will mutually
agree (the agreement of each Party not to be unreasonably withheld) upon the
content and timing of any press release or other public statements (including
statements and releases to employees) with respect to the transactions
contemplated by this Agreement and shall not issue any such press release or
make any such public statement prior to such consultation and agreement, except
(a) as may be required by any Party by applicable Law or by obligations
pursuant to any listing agreement with any securities exchange or any stock
exchange regulations or (b) as part of any communications or disclosures
necessary to implement the provisions of this Agreement, including the making of
any required filings with (or participating in meetings with) any Governmental
Authority; provided, however, that the
Purchaser and the Sellers will give prior notice to the other Party of the
content and timing of any such press release or other public statement required
by applicable Law or by obligations pursuant to any listing agreement with any
securities exchange or any stock exchange regulations, or communications or
disclosures under the preceding clause (b).  Each Party will also
obtain the other Party’s prior approval (such approval not to be unreasonably
withheld) of any press release to be issued immediately following the Closing
announcing the consummation of the transactions contemplated by this
Agreement.

     

    SECTION
5.6.   Disclosure
Supplements.  From time to time prior to the Closing, the
Sellers will supplement or amend the Disclosure Schedule with respect to any
matter which, if existing or occurring at or prior to the date of this
Agreement, would have been required to be set forth or described in the
Disclosure Schedule or which is necessary to correct any information in the
Disclosure Schedule which has been rendered inaccurate by an event occurring
after the date of this Agreement; provided that, except to the
extent expressly provided in Section 2.2(e), the delivery by Sellers of any
supplement, amendment or notice pursuant to this Sections 5.6 or 5.13 shall
not be effective to (a) limit or otherwise modify or affect (i) the
representations or warranties of the Sellers, (ii) the conditions to the
obligations of the Purchaser hereunder or (iii) the remedies available
hereunder to the Purchaser, or (b) increase or expand the Assumed
Liabilities from what they would have been prior to any such supplement,
amendment or notice.

     

    SECTION
5.7.   Employee Benefit
Matters.

     

    (a) Employees.  The
Purchaser agrees to offer employment to each of the employees of the Sellers and
their Affiliates (other than the Indian Subsidiary) who provides services
exclusively or primarily with respect to the Mortgage Business and who is listed
on Section 5.7(a)
of the Sellers Disclosure Schedule (each, a “Business Employee”),
for employment with the Purchaser or its Affiliates effective on the Closing
Date.  Each such offer shall be made no later than ten (10) days prior
to the Closing Date, and shall provide for (i) base salary and retention
bonus opportunity which are no less favorable as the respective Base Salary
Amount and unpaid Retention Bonus Amount for such Business Employee and
(ii) benefits under employee benefit plans that are comparable in the
aggregate to those currently provided by the Sellers to the Hired Employees
based on the aggregate cost of such benefits to any particular Seller
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    respect
to the Hired Employees as of the Closing Date (the “Purchaser
Plans”).  The terms and conditions of each such offer shall not
require additional service or performance conditions beyond those required under
the terms of each Hired Employee’s existing agreement; provided, however, that
Purchaser may adjust its offer in any respect that it deems necessary or
appropriate in order to comply with code Section 409A, in its sole
discretion.  The Purchaser shall include in any such offer of
employment a provision to the effect that acceptance of such offer shall
constitute a resignation of employment with the Sellers and their Affiliates
effective immediately before the Closing Date without any obligation on the part
of any of the Sellers or their Affiliates to provide Retention Bonus Amounts to
the accepting Business Employee under a Benefit Plan or otherwise in connection
with such Business Employee’s termination of employment with the Sellers. 
The Sellers and the Purchaser shall reasonably cooperate so that the Purchaser
can fulfill its obligations under this Section 5.7(a).  Each Business
Employee that accepts an offer of employment with the Purchaser pursuant to this
Section 5.7(a) shall be deemed a “Hired
Employee.  The Purchaser and the Sellers agree to reasonably
cooperate to provide such information (including information relating to
co-payments, deductibles and out-of-pocket expenses for health benefits provided
to Hired Employees) and work in good faith to effectuate an orderly and
efficient transition of benefits (including welfare benefits) provided to the
Hired Employees on and following the Closing Date.  Nothing in this
Section 5.7 shall require the continuation by the Sellers or the Purchaser of
any particular benefit plan or program.

     

    (b) If a
Hired Employee is employed by the Purchaser on the date prior to such Hired
Employee’s unpaid Retention Bonus Amount becoming payable to such Hired Employee
pursuant to the terms and conditions applicable to such Retention Bonus Amount,
the Purchaser shall be obligated to pay to such Hired Employee such Hired
Employee’s unpaid Retention Bonus Amount when due and payable as set forth on
Schedule 1.1(ix).  If
the Purchaser shall fail to pay a Hired Employee’s full unpaid Retention Bonus
Amount pursuant to the preceding sentence or any portion of such Retention Bonus
Amount is forfeited or ceases to be payable for any reason, the Purchaser shall
reimburse the Sellers for 56.7% of such unpaid portion of the Retention Bonus
Amount applicable to such Hired Employee within thirty (30) days after the due
date of such payment; provided that such
reimbursement need not be made until the Retention Adjustment Amount becomes
binding upon the Parties pursuant to Section 2.4.

     

    (c) 401(k)
Plan.  The Purchaser agrees to take such actions as may be
necessary, effective no later than ninetieth (90th) day following the Closing
Date, to permit the Hired Employees to make a directed transfer or a rollover of
a distribution (including in each case outstanding loan balances) from the
Sellers’ 401(k) plan to the Purchaser’s 401(k) plan.

     

    (d) Service.  The
Purchaser shall recognize and provide credit for, and cause its Affiliates and
any Purchaser Plan (including any such plans or arrangements providing vacation,
paid time off, sick pay, severance, disability or retirement benefits but
excluding, in any event, any equity incentive plans or arrangements) to
recognize and provide credit for, all service of each Hired Employee with the
Sellers and its subsidiaries

     

    


    
      
        
           


        

        
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    and their
respective predecessors prior to the Closing Date for purposes of eligibility
and vesting under such Purchaser Plan to the extent past service was recognized
for such Hired Employee under the comparable plans of any Seller immediately
prior to the Closing.  Notwithstanding the foregoing, nothing in this
Section 5.7(d) shall be construed to require crediting of service that would
result in duplication of benefits.

     

    (e) Vacation.  Effective
as of the Closing Date, the Purchaser shall assume and honor, or cause its
Affiliates to honor, the vacation and paid time off of the Hired Employees with
respect to service with the Sellers or their Affiliates as of immediately prior
to the Closing Date.  The Purchaser shall indemnify and hold harmless
each Seller and its or their Affiliates from and against any Liabilities with
respect to such accrued vacation or accrued time off (and any related payment
obligation of the Sellers or their Affiliates), resulting directly or indirectly
from the termination of employment of a Hired Employee on or after the Closing
Date.

     

    (f) Spending
Accounts.  Effective as of the Closing Date, the Purchaser
shall assume, honor and be solely responsible for the Hired Employees’ elections
for the calendar year in which the Closing Date occurs with respect to the
healthcare spending account and the dependent care flexible spending account
(the “Spending
Accounts”) under the Benefit Plans.  In the event that, as of
the Closing Date, the aggregate amount withheld by the Sellers or their
Affiliates from the Hired Employees’ compensation with respect to the Spending
Accounts during the calendar year in which the Closing Date occurs exceeds the
amount reimbursed to the Hired Employees in such calendar year, the Sellers
shall remit the amount of the excess to the Purchaser promptly following the
Closing Date.  In the event that, as of the Closing Date, the
aggregate amount withheld by the Sellers or their Affiliates from the Hired
Employees’ compensation with respect to the Spending Accounts during the
calendar year in which the Closing Date occurs is less than the amount
reimbursed to the Hired Employees in such calendar year, the Purchaser shall
remit to the Sellers the amount of such unfunded reimbursements promptly
following the Closing Date.

     

    (g) WARN.  The
Purchaser shall indemnify and hold the Sellers harmless from, and none of the
Sellers shall have any responsibility with respect to, any Liabilities arising
under the Worker Adjustment and Retraining Notification Act of 1988 and similar
state and local rules, statutes and ordinances (collectively, “WARN”) as a result,
in whole or in part, of any terminations of employment of Business Employees
occurring on or following the Closing Date.  The Sellers shall
indemnify and hold the Purchaser harmless from, and the Purchaser shall not have
any responsibility with respect to, any Liabilities arising under WARN resulting
from any actions taken by either Seller prior to the Closing (determined without
regard to any employment terminations occurring on the Closing Date or
thereafter).

     

    (h) Third Party
Beneficiaries.  Nothing contained in this Section 5.7 shall
(i) give any Person who is not a party to this Agreement any right to
enforce the provisions of this Agreement, including this Section 5.7,
(ii) be construed as an amendment of any Benefit Plan or Non-U.S. Benefit
Plan, or (iii) confer upon any current

     

    


    
      
        
           


        

        
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    or former
employee any right to employment or continued employment for any period of time
by reason of this Agreement, or any right to a particular term or condition of
employment.

     

    SECTION
5.8.   Confidentiality.

     

    Each
Party that is a Recipient will hold, and will cause its Affiliates and
Representatives to hold, all Confidential Information in strict confidence from
any other Person (other than any such Affiliate or
Representative).  Notwithstanding the foregoing, a Recipient may
disclose Confidential Information to the extent (a) necessary to obtain any
License, approval, consent or waiver required or reasonably desired in
connection with this Agreement, the Transaction Documents or the transactions
contemplated hereby or thereby, (b) consented to in writing by the
Disclosing Party prior to such disclosure, (c) required by Law, (d) in
connection with the preparation or filing of, or statement, report, notice or
notification to (whether oral or written), any Governmental Authority,
including, any state or Federal banking authority or regulator, the IRS, the
Securities and Exchange Commission, the Financial Industry Regulatory Authority
and any state securities commission, (e) to any lender or financing source
in connection with any financing, or (f) necessary in connection with any
Legal Proceeding in respect of this Agreement, the transactions contemplated by
this Agreement, or in defending or asserting any claim or Legal Proceeding
relating to the Mortgage Business.

     

    In the
event the transactions contemplated hereby are not consummated, upon the request
of a Disclosing Party, the Recipient will, and will cause its Affiliates and
Representatives to, promptly (and in no event later than five (5) Business Days
after such request) redeliver or, at its option, destroy, or cause to be
redelivered or, at its option, destroyed, all written Confidential Information
furnished by another Party in connection with this Agreement or the transactions
contemplated hereby, and, except to the extent required to retain copies of such
documents and information pursuant to any Party’s regular document retention
procedures and practices, destroy or cause to be destroyed all notes, memoranda,
summaries, analyses, compilations and other writings related thereto or based
thereon.

     

    SECTION
5.9.   Control of
Business.  Except as otherwise set forth in this Agreement, the
Purchaser acknowledges on behalf of itself and its Affiliates and their
respective directors, officers, employees, Affiliates, agents, Representatives,
successors and assigns that the operation of the Mortgage Business remains in
the dominion and control of the Sellers until the Closing and that none of the
foregoing Persons will provide, directly or indirectly, any directions, orders,
advice, aid, assistance or information to any director, officer or employee of
either of the Sellers or the Indian Subsidiary or solicit or request, directly
or indirectly, any information relating to the Mortgage Business from any
director, officer or employee of the Seller or the Indian Subsidiary, except as
specifically contemplated or permitted by this Agreement or as otherwise
consented to in advance by an authorized officer of a Seller.

     

    SECTION
5.10.   Non-Solicitation; Additional
Confidentiality Provisions.

     

     

     

    
      
         

      

      
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    (a) From the
Closing Date until the third (3rd) anniversary of the Closing Date, the Sellers
shall not (and shall cause their respective Affiliates not to) directly or
indirectly cause, solicit, induce or encourage any employees of the Indian
Subsidiary or the Mortgage Business to leave such employment or hire, employ or
otherwise engage any such individual, provided that nothing in this
paragraph (a) shall prohibit the Sellers from soliciting or hiring any employee
of the Indian Subsidiary or the Mortgage Business that is responding to a job
opportunity advertisement directed to the general public rather than targeting
employees of the Indian Subsidiary or the Mortgage Business.

     

    (b) From the
date of this Agreement until the Closing Date, the Purchaser and the Sellers
shall not directly or indirectly cause, solicit, induce or encourage any
employees of the Sellers, the Indian Subsidiary or the Mortgage Business to
leave such employment, provided that nothing in this
paragraph (b) shall prohibit the Purchaser from soliciting Business Employees in
connection with offers of employment commencing on or after the Closing Date or
from soliciting or hiring any employee that is responding to a job opportunity
advertisement directed to the general public rather than targeting employees of
the Sellers, the Indian Subsidiary or the Mortgage Business.

     

    (c) From the
Closing Date until the third (3rd) anniversary of the Closing Date, the
Purchaser shall not directly or indirectly cause, solicit, induce or encourage
any employees of the Sellers to leave such employment or hire, employ or
otherwise engage any such individual, provided that nothing in this
paragraph (c) shall prohibit the Purchaser from soliciting or hiring Business
Employees in connection with offers of employment commencing on or after the
Closing Date or from soliciting or hiring any employee of the Sellers that is
responding to a job opportunity advertisement directed to the general public
rather than targeting employees of the Sellers.

     

    (d) Notwithstanding
anything to the contrary in this Agreement:

     

    (i) The
Sellers shall not (and shall cause their respective Affiliates, directors,
officers, employees and representatives not to), directly or indirectly,
disclose, reveal, divulge or communicate to any Person any Mortgage Business
Confidential Information (as defined below) except to the extent, if any, such
disclosure is required by applicable Law or in connection with performing its
obligations under this Agreement, including obtaining any consents or approvals
(provided that in the event
disclosure is required by applicable Law, the Sellers shall, to the extent
possible, provide the Purchaser with prompt notice of such requirement prior to
making any disclosure so that Purchaser may seek an appropriate protective
order).  For purposes of this Section, “Mortgage Business
Confidential Information” means any information with respect to the
Mortgage Business (including methods of operation, customers, customer lists,
fees, costs, know-how, plans, Contracts, and servicing files); provided that
Sellers shall not be prohibited under this paragraph from disclosing any of the
foregoing information to the extent that it (A) is generally available to
the public on the date

     

     

     

    
      
         

      

      
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    of this
Agreement or (B) becomes generally available to the public other than as a
result of a disclosure not otherwise permissible hereunder.

     

    (ii) Restrictions
imposed on the Purchaser under this Agreement with respect to disclosure of
Mortgage Business Confidential Information shall terminate at the
Closing.

     

    (e) The
Parties acknowledge and agree that any remedy at Law for any breach of the
provisions of this Section 5.10 may be inadequate, and hereby consent to
the granting by any court of an injunction or other equitable relief, without
the necessity of actual monetary loss being proved, in order that the breach or
threatened breach of such provision may be effectively restrained.

     

    SECTION
5.11.   Non-Competition.  From
the Closing Date until the third (3rd) anniversary of the Closing Date, the
Sellers shall not own, manage, operate, control or participate in the ownership,
management, operation or control of any business, whether in corporate,
proprietorship or partnership form or otherwise, that is engaged, directly or
indirectly, in the business of (a) soliciting, originating, underwriting,
financing, refinancing and brokering Mortgage loans for sale to Mortgage Program
Sponsors under the Mortgage Programs transferred to the Purchaser as part of the
Acquired Assets or (b) acting as “primary servicer,” “master servicer, ”
“special servicer” or “sub-servicer” in respect of Mortgage loans (any such
business referred to under clause (a) or (b), a “Restricted
Business”); provided, however, that the
restrictions contained in this Section 5.11 shall not restrict (i) the
Sellers from acting as a “special servicer” on a contract basis for Mortgage
loans not involving the direct servicing of Mortgage loans for third party
Securitizations or Mortgage Program Sponsors under the Mortgage Programs
transferred to the Purchaser as part of the Acquired Assets, (ii) any
activities of Capmark Bank, (iii) the Sellers from engaging in servicing
(A) any Mortgage loans held by any Seller or any Affiliate of any Seller or
for which any Seller or any such Affiliate acts as agent, or (B) any third
party mortgage loans under programs and arrangements currently conducted by any
Seller or any Affiliate of any Seller other than the Servicing Agreements,
including New Markets Tax Credits, military housing, and affordable housing
mortgage loans or bonds related to the low income housing tax credit business
(for purposes of this clause (iii), the term “Affiliate” shall not include any
Person that Controls Parent or any Person (other than Sellers and any Person
Controlled by any Seller) Controlled by such Person), (iv) any third party
who acquires any Seller or Affiliate of the Sellers by way of a merger,
consolidation, combination with, or acquisition of a material portion of the
Properties of a Seller or (v) the acquisition by the Sellers and their
respective Affiliates of (in the aggregate) less than 2% of the outstanding
capital stock of any publicly traded company engaged in a Restricted
Business.  The Parties acknowledge and agree that any remedy at Law
for any breach of the provisions of this Section 5.11 may be inadequate,
and hereby consent to the granting by any court of an injunction or other
equitable relief, without the necessity of actual monetary loss being proved, in
order that the breach or threatened breach of such provision may be effectively
restrained.

     

    


    
      
        
           


        

        
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    SECTION
5.12.   Tax
Matters.

     

    (a) Sales, Transfer and Similar
Taxes.  All sales, use, transfer, stamp, registration, value
added and similar Taxes, and any conveyance fees and recording and similar
charges, incurred in connection with the transactions contemplated by this
Agreement (collectively, “Transfer Taxes”)
shall be paid by the Sellers.  The Sellers shall be responsible for
preparing and timely filing all Tax Returns required to be filed with respect to
Transfer Taxes.

     

    (b) Prorations.  The
Sellers shall bear all property and ad valorem tax liability with
respect to the Acquired Assets if the lien or assessment date arises prior to
the Closing Date irrespective of the reporting and payment dates of such
taxes.  All other real property taxes, personal property taxes, or
ad valorem obligations
and similar recurring taxes and fees on the Acquired Assets for taxable periods
beginning before, and ending after, the Closing Date, shall be prorated between
the Purchaser and the Sellers as of the Closing Date.  The Sellers
shall be responsible for all such taxes and fees on the Acquired Assets accruing
during any period up to and including the Closing Date.  Purchaser
shall be responsible for all such taxes and fees on the Acquired Assets accruing
during any period after the Closing Date.  With respect to Taxes
described in this paragraph (b), the Sellers shall timely file all Tax Returns
due before the Closing Date with respect to such Taxes and Purchaser shall
prepare and timely file all Tax Returns due after the Closing Date with respect
to such Taxes.  If one party remits to the appropriate Taxing
Authority payment for Taxes, which are subject to proration under this paragraph
(b) and such payment includes the other party’s share of such Taxes, such other
party shall promptly reimburse the remitting party for its share of such
Taxes.

     

    (c) Cooperation on Tax
Matters.  Purchaser and each of the Sellers shall furnish or
cause to be furnished to each other, as promptly as practicable, such
information and assistance relating to the Acquired Assets, the Assumed
Liabilities or the Mortgage Business as is reasonably necessary for the
preparation and filing of any Tax Return, claim for refund or other filings
relating to Tax matters, for the preparation for any Tax audit, for the
preparation for any Tax protest, for the prosecution or defense of any suit or
other proceeding or matter relating to Tax.

     

    SECTION
5.13.   Notice and
Cure.  The Purchaser and the Sellers shall notify the other in
writing of, and shall use all commercially reasonable efforts to cure before the
Closing, any event, transaction or circumstance, as soon as practicable after it
becomes known to such Party, occurring after the date of this Agreement, that
causes or shall cause any covenant or agreement of such Party under this
Agreement to be breached or that renders or shall render untrue any
representation or warranty of such Party contained in this Agreement as if the
same were made on or as of the date of such event, transaction or
circumstance.

     

    


    
      
        
           


        

        
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    SECTION
5.14.   Names and Mark; Name
Changes.

     

    (a) The
Purchaser acknowledges and agrees that it does not have any rights in or to any
marks or names owned by the Sellers incorporating, utilizing or otherwise
including the name or trademark “CAPMARK”; any logos associated with CAPMARK
owned by the Sellers; and all related trademarks or any derivations or
formatives thereof, or any trademarks confusing similar thereto (the “Marks”) and,
following the Closing Date (other than as permitted by this Section 5.14)
the Purchaser shall not be granted by Sellers any right, title or interest in
and to, or right to use, the Marks or any marks or names confusingly similar
thereto.

     

    (b) The
Purchaser covenants that for so long as Sellers utilize (or their successors
utilize or license the utilization of) the Marks, it will not adopt, use or
register or authorize others to adopt, use or register, any trade names,
trademarks, service marks or Internet domain names consisting of or
incorporating the Marks or any marks, names or Internet domain name confusingly
similar thereto.  Promptly following the Closing Date, the Purchaser
shall take all action necessary or appropriate to change the name of the Indian
Subsidiary so that it no longer refers to “Capmark” or “CapMark”.

     

    (c) As soon
as practicable after the Closing Date, each of the Sellers and the Purchaser
agree to take all such actions as are reasonably required to change the named
party on documents related to the applicable Servicing Agreements that are
currently in the name of a Seller, in its capacity as Servicer, to the name of
the Purchaser, including changing the name on all applicable financing
statements and insurance policies, and cease all other use of the
Marks.

     

    (d) Subject
to the terms and conditions of this Agreement, Sellers hereby grant to
Purchaser, for a period of up to six (6) months immediately following the
Closing Date, a non-exclusive, non-transferable, royalty-free, fully paid up,
transitional license, with no right to sublicense, to use the Marks solely for
use on or in connection with the transition of the Mortgage Business to the
Purchaser as described in Section 5.14(e), it being understood that the
quality of the services provided by the Purchaser in connection with the Marks
shall be of a quality at least consistent with the quality of the services
provided by the Sellers prior to the Closing Date.  Purchaser shall
not, except as specifically permitted in this Agreement or approved in advance
by Sellers, use the Marks or give consent to the use of the Marks to any other
Person for any reason or in any manner.

     

    (e) For a
period of up to six (6) months immediately following the Closing Date, Purchaser
may continue to use materials bearing the Marks in the form that they are
existing as of the Closing Date, including the following items:
(a) mortgage agreements, purchase orders, agreements of sale, warranties,
indemnifications, invoices and other similar documents of a contractual nature;
(b) stationery, business cards, promotional brochures, and other similar
correspondence and (c) equipment, vehicles and signage; provided that Purchaser shall
not be obligated to remove the Marks from any mortgage agreements, purchase
orders, agreements of sale, warranties, indemnifications,

     

    


    
      
        
           


        

        
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    invoices
and other similar documents of a contractual nature in effect as of the Closing
Date.

     

    (f) The
Parties acknowledge and agree that any remedy at Law for any breach of the
provisions of this Section 5.14 may be inadequate, and hereby consent to
the granting by any court of an injunction or other equitable relief, without
the necessity of actual monetary loss being proved, in order that the breach or
threatened breach of such provision may be effectively restrained.

     

    SECTION
5.15.   Indian Subsidiary Net
Worth.  As of the Closing Date, Sellers shall cause the amount
of assets of the Indian Subsidiary to exceed the Liabilities of the Indian
Subsidiary (determined in accordance with generally accepted accounting
principles in India consistent with the July 31, 2009 balance sheet of the
Indian Subsidiary referred to in Section 3.16(b)).

     

    SECTION
5.16.   Capmark Bank
Contracts.  Prior to the Closing, the Sellers shall purchase
and acquire from Capmark Bank good and valid title (free and clear of any and
all Liens) to all of the Advances, Purchased Loans and other Contracts relating
to Pipeline Transactions that are held by Capmark Bank (the “Capmark Bank
Contracts”).  The representations and warranties of the Sellers
contained in this Agreement relating to Advances, Purchased Loans and other
Contracts relating to Pipeline Transactions shall be deemed to be made by the
Sellers with respect to the Capmark Bank Contracts; provided that those
representations and warranties of the Sellers relating to title to the Capmark
Bank Contracts shall be deemed to be made only as of the Closing
Date.

     

    SECTION
5.17.   Further
Assurances.  From and after the Closing, each of the Parties
hereto shall from time to time at the other’s request and expense and without
further consideration, execute and deliver such other instruments of transfer,
conveyance and assignment and take such further action as the other may
reasonably require effectively to (i) assign, transfer and convey to the
Purchaser, or to perfect or record the Purchaser’s title to or interest in, the
Acquired Assets, (ii) assign, transfer and convey to the Purchaser the
Acquired Assets and allow the Purchaser to assume the Assumed Liabilities, and
(iii) otherwise to carry out the provisions hereof and the transactions
contemplated hereby. If any Property that is an Excluded Asset is inadvertently
transferred or conveyed by the Sellers to the Purchaser (or is transferred with
the Indian Subsidiary), the parties promptly shall cooperate in good faith to
determine appropriate means to re-convey such Property to the applicable Seller
and shall effect such reconveyance as promptly as practicable
thereafter.

     

    SECTION
5.18.   Additional Post-Closing
Covenants of the Sellers.  The Sellers shall, after the
Closing, deliver to the Purchaser all material communications or notices
received by them from any Customer or any other Person relevant to any of the
Acquired Assets or Assumed Liabilities (or any of the Properties and Liabilities
of the Indian Subsidiary) as soon as reasonably practicable following receipt of
the same, including all notices relating to exercise of any purchase option, or
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    titling
or security interest filings of any of the Sellers in respect of any of the
Acquired Assets and all notices received from any creditor of a
Customer.

     

    SECTION
5.19.   Purchased Real Property
Leases.  Prior to the Real Property Lease Decision Date (as
hereafter defined), the Purchaser shall provide Sellers with a written notice
listing each of the Lease Agreements that the Purchaser desires to assume (the
“Purchased Real
Property Leases”).  The “Real Property Lease Decision
Date” means (a) if an Insolvency Proceeding with respect to the Sellers
has been commenced prior to the Closing Date, the date that is five (5) Business
Days prior to the deadline set by the bankruptcy court for the Sellers to assume
or reject the Lease Agreements in such Insolvency Proceeding, and (b) if an
Insolvency Proceeding with respect to the Sellers has not been commenced prior
to the Closing Date, the date that is five (5) Business Days after the Sellers
deliver to the Purchaser the Put Option Exercise Notice.

     

    SECTION
5.20.   Late
Charges.  To the extent Purchaser collects, between the Closing
Date and the second anniversary of the Closing Date, late charges accrued and
unpaid as of the Closing Date with respect to Serviced Loans transferred to
Purchaser pursuant to this Agreement, Purchaser shall remit fifty percent (50%)
of the amount of such late charges to Parent promptly following the end of the
calendar quarter in which such late charges are so collected.

     

    ARTICLE
VI

    CLOSING
CONDITIONS

     

    SECTION
6.1.   Conditions to the
Obligations of the Purchaser under this
Agreement.  Notwithstanding any exercise of the Put Option, the
obligations of the Purchaser under this Agreement shall be subject to the
satisfaction (or waiver by the Purchaser), at or prior to the Closing, of the
following conditions:

     

    (a) any
waiting period applicable to the consummation of the transactions contemplated
hereby under the HSR Act shall have expired or been terminated;

     

    (b) the
Purchaser shall have received certified copies of the resolutions of the
stockholders of each Seller authorizing and approving all of the transactions
contemplated by this Agreement and the Transaction Documents;

     

    (c) each of
the covenants, agreements and obligations of the Sellers required to be
performed by them at or prior to the Closing pursuant to this Agreement shall
have been duly performed and complied with in all material
respects;

     

    (d) (A) the
representations and warranties of the Sellers contained in this Agreement (other
than the Subject Sections (as hereinafter defined)) shall be true and correct
(disregarding all qualifications therein relating to materiality or a Material
Adverse Effect) as of the date of this Agreement and as of the Closing as though
made at and as of the Closing (or, in the case of any representation or warranty
which specifically

     

    


    
      
        
           


        

        
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    relates
to an earlier date, as of such date), except where the failure of such
representations and warranties to be true and correct, individually and in the
aggregate, is not reasonably likely to have a Material Adverse Effect, and
(B) the representations and warranties of the Sellers contained in
Sections 3.1, 3.2 and 3.3 of this Agreement (the “Subject Sections”)
shall be true and correct as of the date of this Agreement and as of the Closing
as though made at and as of the Closing;

     

    (e) there
shall have been duly executed and delivered to Purchaser all Transaction
Documents, instruments and other documents to be delivered to Purchaser pursuant
to Section 7.1(a);

     

    (f) the
Purchaser shall have received an Officer’s Certificate from the Sellers
certifying as to the fulfillment of the conditions set forth in
Sections 6.1(c) and (d) hereof;

     

    (g) each
Mortgage Program Sponsor shall have consented to the transfers contemplated by
this Agreement and furnished the Purchaser with all requisite approvals and
authorizations under the applicable Mortgage Programs;

     

    (h) the
Purchaser shall have obtained assurances from each of the applicable Rating
Agencies that they will issue confirmations that the substitution of the
Purchaser as successor servicer under the applicable Servicing Agreements will
not result in a downgrade, withdrawal or qualification of any securities rated
by the applicable Rating Agencies;

     

    (i) the
consents, approvals and other items required to be set forth on Section 3.5 of the Sellers
Disclosure Schedule (other than with respect to the Licenses) shall have
been obtained and shall be in full force and effect, other than those that
(i) if not obtained would not, individually and in the aggregate,
reasonably be expected to result in a material and adverse affect on the
Mortgage Business after the Closing or materially impair the Purchaser’s ability
to operate the Mortgage Business after the Closing or (ii) are not required
as a result of the Bankruptcy Court Order;

     

    (j) the
reduction in the Purchase Price that would result from the Estimated Servicing
Adjustment Amount and the Estimated June Data Tape Adjustment Amount shall not
exceed $125,000,000;

     

    (k) Sellers
shall have a minimum balance in Qualified Escrow Accounts at Closing of at least
$3,500,000,000;

     

    (l) no
injunction, restraining Order or other ruling or Order issued by any court of
competent jurisdiction or Governmental Authority or other legal restraint or
prohibition preventing the consummation of the transactions contemplated hereby
shall be in effect;

     

    


    
      
        
           


        

        
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    (m) no Legal
Proceedings shall have been commenced by any Governmental Authority seeking to
restrain or prohibit, or to obtain damages with respect to, the consummation of
the transactions contemplated hereby, unless Sellers have obtained the
Bankruptcy Court Order; and

     

    (n) if any
Seller shall become subject to any Insolvency Proceeding prior to Closing, the
bankruptcy court or other tribunal shall have issued an Order (the “Bankruptcy Court
Order”) that (i) approves this Agreement and authorizes the Sellers
to enter into and consummate the transactions contemplated by this Agreement and
the Transaction Documents; (ii) determines and finds that the Purchaser is
a “good faith purchaser” within the meaning of Section 363(m) of the Bankruptcy
Code; (iii) authorizes the delivery of the Acquired Assets to the Purchaser
free and clear of all interests within the meaning of Section 363(f) of the
Bankruptcy Code and including free and clear of all liens, claims and
encumbrances; (iv) finds that the purchase price hereunder, including the
consideration for the Put Option, constitutes “reasonably equivalent value” for
the Acquired Assets; (v) authorizes the assumption by the Sellers and
assignment to the Purchaser of the Purchased Contracts; (vi) relieves the
Purchaser and its Affiliates of (A) any potential responsibility or
Liability to any Seller, or any other Person, for Excluded Liabilities and
(B) any potential Liability for a claim that the transactions contemplated
by this Agreement constitutes a fraudulent conveyance, fraudulent transfer, or
similar claim; (vii) provides for the Sellers to assume this Agreement and
each executory agreement to be entered into by any Seller at or prior to Closing
as contemplated by this Agreement or the Transactions Documents, including the
Transition Services Agreement; and (viii) which Bankruptcy Court Order is a
Final Order, or if an appeal has been taken and the Bankruptcy Court Order is
not a Final Order, no stay has been entered barring the Closing.

     

    SECTION
6.2.   Conditions to the
Obligations of the Sellers under this Agreement.  Following the
Sellers’ exercise of the Put Option, the obligations of the Sellers under this
Agreement shall be subject to the satisfaction, at or prior to the Closing, of
the following conditions:

     

    (a) any
waiting period applicable to the consummation of the transactions contemplated
hereby under the HSR Act shall have expired or been terminated;

     

    (b) each of
the covenants, agreements and obligations of the Purchaser required to be
performed by the Purchaser at or prior to the Closing pursuant to the terms of
this Agreement shall have been duly performed and complied with in all material
respects;

     

    (c) the
representations and warranties of the Purchaser contained in this Agreement
shall be true and correct as of the date of this Agreement and as of the Closing
Date as though made at and as of the Closing Date (except as to any
representation or warranty which specifically relates to an earlier date),
except where the failure of such representations and warranties to be true and
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    aggregate,
is not reasonably likely to have a material adverse effect on the ability of the
Purchaser to perform its obligations under this Agreement or consummate the
transactions contemplated by this Agreement;

     

    (d) there
shall have been duly executed and delivered to Sellers all Transaction
Documents, instruments and other documents to be delivered to Sellers pursuant
to Section 7.1(b);

     

    (e) the
Sellers shall have received an Officer’s Certificate of the Purchaser certifying
as to the fulfillment of the conditions set forth in Sections 6.2(b), and
6.2(c);

     

    (f) the
reduction in the Purchase Price that would result from the Estimated Servicing
Adjustment Amount and the Estimated June Data Tape Adjustment Amount shall not
exceed $125,000,000;

     

    (g) the
Purchaser shall have remitted to the Sellers the Base Amount as adjusted for the
Estimated Adjustment, and deliver the DUS Note and, if applicable, the Dynex
Fannie Mae Note, the Dynex Freddie Mac Note, and the Holdback Note, all in
accordance with Section 2.3(b);

     

    (h) no
injunction, restraining Order or other ruling or Order issued by any court of
competent jurisdiction or Governmental Authority or other legal restraint or
prohibition preventing the consummation of the transactions contemplated hereby
shall be in effect;

     

    (i) no Legal
Proceedings shall have been commenced by any Governmental Authority seeking to
restrain or prohibit, or to obtain damages with respect to, the consummation of
the transactions contemplated hereby, unless Sellers have obtained the
Bankruptcy Court Order; and

     

    (j) if any
Seller shall become subject to any Insolvency Proceeding prior to Closing,
Sellers shall have obtained the Bankruptcy Court Order.

     

    ARTICLE
VII

    CLOSING

     

    SECTION
7.1.   Closing.  The
closing of the transactions contemplated by this Agreement (the “Closing”) shall take
place at the offices of Dewey & LeBoeuf LLP, 1301 Avenue of the Americas,
New York, New York, 10019, subject to the satisfaction or waiver of the
conditions set forth in Article VI, commencing at 9:30 a.m. local time two (2)
Business Days following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated hereby
(other than conditions with respect to actions the respective Parties will take
at the Closing itself), such date to be not later than 120 days after the date
of this Agreement; provided that if on such date,
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    Section 6.1(g),
either Party may extend such 120-day period by an additional fifteen (15) days
in order to satisfy such condition or (2) all of the conditions to Closing
have been satisfied but the Purchaser has not obtained (without giving effect to
arrangements pursuant to Section 5.4(d)) all Licenses contemplated by
Section 5.4 (including any Licenses from state Governmental Authorities),
the Purchaser may extend such 120-day period an additional thirty (30) days in
order to obtain such Licenses (such 120 day period and any extensions
contemplated by clause (1) or (2) above, the “Closing
Period”).  The date on which the Closing actually is held is
referred to as the “Closing
Date.”  At the Closing:

     

    (a) The
Sellers shall deliver or cause to be delivered to the Purchaser an executed copy
of the following:

     

    (i) the
certificate described in Section 6.1(f);

     

    (ii) a
transfer deed or other instrument of transfer in respect of the Purchased Equity
Interest in the form required by, and duly stamped and executed by the Sellers
in accordance with the requirements of, The Indian Companies Act, 1956 (the
“Indian Transfer
Deed”);

     

    (iii) executed
counterparts of the Fannie Mae Transfer Agreement and the Freddie Mac Transfer
Agreement;

     

    (iv) certificates
of good standing for each Seller and the equivalent thereof for the Indian
Subsidiary, each dated within five (5) Business Days of the Closing
Date;

     

    (v) resignations
of the directors of the Indian Subsidiary who are not Business Employees under
this Agreements from their office, effective as of the Closing
Date;

     

    (vi) (A) the
Assignment and Assumption Agreement; (B) the Bill of Sale and General
Assignment; (C) the Assignment of Intellectual Property; (D) the
Transition Services Agreement; and (E) the other Transaction Documents to
which it is a party and such other instruments of conveyance, assignment and
transfer, in form and substance reasonably acceptable to the Purchaser’s
counsel, as shall be necessary to vest in the Purchaser good title to the
Acquired Assets;

     

    (vii) a
non-foreign person affidavit that complies with the requirements of Section 1445
of the Code, executed by each Seller and in form and substance reasonably
satisfactory to the Purchaser; and

     

    (viii) all other
previously undelivered documents required to be delivered by the Sellers to the
Purchaser at or prior to the Closing pursuant to the terms of this Agreement, in
form and substance reasonably acceptable to the Purchaser, as may be reasonably
necessary to effect the Closing.

     

     

     

    
      
         

      

      
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    (b) The
Purchaser shall deliver or cause to be delivered to the Sellers an executed copy
of the following:

     

    (i) the
certificate described in Section 6.2(e);

     

    (ii) executed
counterparts of the Fannie Mae Transfer Agreement and the Freddie Mac Transfer
Agreement;

     

    (iii) (A) the
Assignment and Assumption Agreement; (B) the Bill of Sale and General
Assignment; (C) the Assignment of Intellectual Property; (D) the
Transition Services Agreement; and (E) the other Transaction Documents to
which it is a party and such other instruments of assumption with respect to the
Assumed Liabilities as the Sellers and their counsel may reasonably request;
and

     

    (iv) all other
previously undelivered documents required to be delivered by the Purchaser to
the Sellers at or prior to the Closing pursuant to the terms of this Agreement,
in form and substance reasonably acceptable to the Sellers, as may be reasonably
necessary to effect the Closing.

     

    (c) The
Purchaser shall remit to the Sellers the Base Amount, as adjusted for the
Estimated Adjustment, and deliver the DUS Note and, if applicable, the Dynex
Fannie Mae Note, the Dynex Freddie Mac Note and the Holdback Note, all in
accordance with Section 2.3(b).

     

    ARTICLE
VIII

    INDEMNIFICATION

     

    SECTION
8.1.   Indemnification.

     

    (a) The
Sellers hereby jointly and severally agree to indemnify and hold Purchaser and
its Affiliates, successors and assigns (collectively, the “Purchaser Indemnified
Parties”) harmless from and against, and pay to the applicable Purchaser
Indemnified Parties the amount of, any and all losses, liabilities, claims,
obligations, deficiencies, demands, judgments, damages, interest, fines,
penalties, assessments, costs and expenses (including costs of investigation and
defense and attorneys’ and other professionals’ fees (but excluding any punitive
or consequential except to the extent required to be paid to a third party)),
whether or not involving a third party claim (individually, a “Loss” and,
collectively, “Losses”):

     

    (i) based
upon, attributable to or resulting from the failure of any of the
representations or warranties made by a Seller in this Agreement or in any
certificate delivered pursuant to this Agreement to be true and correct at and
as of the date of this Agreement and at and as of the Closing Date;

     

    (ii) based
upon, attributable to or resulting from the breach of any covenant or other
agreement on the part of a Seller under this Agreement; or

     

    


    
      
        
           


        

        
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    (iii) arising
out of, based upon or relating to any Excluded Liability or any Excluded
Asset.

     

    (b) The
Purchaser hereby agrees to indemnify and hold Seller and its Affiliates,
successors and assigns (collectively, the “Seller Indemnified
Parties”) harmless from and against, and pay to the applicable Seller
Indemnified Parties the amount of, any and all Losses:

     

    (i) based
upon, attributable to or resulting from the failure of any of the
representations or warranties made by the Purchaser in this Agreement or in any
certificate delivered pursuant to this Agreement to be true and correct at the
date of this Agreement and as of the Closing Date;

     

    (ii) based
upon, attributable to or resulting from the breach of any covenant or other
agreement on the part of the Purchaser under this Agreement; or

     

    (iii) arising
out of any Assumed Liability.

     

    (c) An
indemnifying party shall not have any liability under Sections 8.1(a)(i) or
8.1(b)(i):  (i) unless the aggregate amount of Losses incurred by the
indemnified parties and otherwise indemnifiable thereunder based upon,
attributable to or resulting from the failure of any of the representations or
warranties to be true and correct exceeds $4,000,000 (the “Basket”) and, if the
aggregate amount of such Losses exceeds the Basket, the indemnifying party shall
be required to pay the entire amount of all such Losses and (ii) for any Losses,
individually or in the aggregate, in excess of $200,000,000 (the “Cap”).  Notwithstanding
the foregoing, the Basket and Cap shall not limit indemnification for Losses
arising from a breach of a representation or warranty set forth in Sections
 3.1, 3.2, 3.3 or 3.7 of this Agreement (in the case of Losses incurred by
a Purchaser Indemnified Party) or Sections 4.1 or 4.2 of this Agreement (in
the case of Losses incurred by a Seller Indemnified Party).

     

    (d) For
purposes of Sections 8.1(a)(i) and 8.1(b)(i), any materiality or Material
Adverse Effect qualifications in the representations and warranties in this
Agreement or certificates delivered pursuant hereto shall be
disregarded.

     

    (e) The right
to indemnification or any other remedy based on representations, warranties,
covenants and agreements in this Agreement or in any certificate delivered
pursuant to this Agreement shall not be affected by any investigation conducted,
or any knowledge acquired (or capable of being acquired), at any time, whether
before or after the execution and delivery of this Agreement or the Closing
Date, with respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant or agreement.  The waiver of any
condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any such covenant or agreements, will not
affect the right to indemnification or any

     

    


    
      
        
           


        

        
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    other
remedy based on such representations, warranties, covenants and agreements
(except to the extent, if any, otherwise expressly provided in such
waiver).

     

    (f) In the
event that any Legal Proceedings shall be instituted or that any claim or demand
shall be asserted by any third party in respect of which indemnification may be
sought under this Article VIII (“Third Party Claim”),
the indemnified party shall promptly cause written notice of the assertion of
any Third Party Claim of which it has knowledge which is covered by this
indemnity to be forwarded to the indemnifying party.  The failure of
the indemnified party to give reasonably prompt notice of any Third Party Claim
shall not release, waive or otherwise affect the indemnifying party’s
obligations with respect thereto except to the extent that the indemnifying
party can demonstrate actual loss and prejudice as a result of such
failure.  Subject to the provisions of this Article VIII, the
indemnifying party shall have the right, at its sole expense, to be represented
by counsel of its choice, which must be reasonably satisfactory to the
indemnified party, and to defend against, negotiate, settle or otherwise deal
with any Third Party Claim which relates to any Losses indemnified against by it
hereunder; provided that the indemnifying
party shall have acknowledged in writing to the indemnified party its obligation
to indemnify the indemnified party as provided hereunder.  If the
indemnifying party elects to defend against, negotiate, settle or otherwise deal
with any Third Party Claim which relates to any Losses indemnified against by it
hereunder, it shall within five (5) days of the indemnified party’s written
notice of the assertion of such Third Party Claim (or sooner, if the nature of
the Third Party Claim so requires) notify the indemnified party of its intent to
do so; provided
that the
indemnifying party must conduct its defense of the Third Party Claim actively
and diligently thereafter in order to preserve its rights in this
regard.  If the indemnifying party elects not to defend against,
negotiate, settle or otherwise deal with any Third Party Claim which relates to
any Losses indemnified against by it hereunder, fails to notify the indemnified
party of its election as herein provided or contests its obligation to indemnify
the indemnified party for such Losses under this Agreement, the indemnified
party may defend against, negotiate, settle or otherwise deal with such Third
Party Claim.  If the indemnified party defends any Third Party Claim,
then the indemnifying party shall reimburse the indemnified party for the
expenses of defending such Third Party Claim upon submission of periodic
bills.  If the indemnifying party shall assume the defense of any
Third Party Claim, the indemnified party may participate, at its own expense, in
the defense of such Third Party Claim; provided, however, that such
indemnified party shall be entitled to participate in any such defense with
separate counsel at the expense of the indemnifying party if (i) so
requested by the indemnifying party to participate or (ii) in the
reasonable view of counsel to the indemnified party a conflict or potential
conflict exists between the indemnified party and the indemnifying party that
would make such separate representation advisable; and provided further, that the
indemnifying party shall not be required to pay for more than one such counsel
(plus any appropriate local counsel) for all indemnified parties in connection
with any Third Party Claim.  Each party hereto agrees to provide
reasonable access to each other party to such documents and information as may
reasonably be requested in connection with the defense, negotiation or
settlement of any such Third Party Claim.  Notwithstanding anything
in

     

    


    
      
        
           


        

        
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    this
Article VIII to the contrary, neither the indemnifying party nor the
indemnified party shall, without the written consent of the other party, settle
or compromise any Third Party Claim or permit a default or consent to entry of
any judgment unless the claimant (or claimants) and such party provide to such
other party an unqualified release from all liability in respect of the Third
Party Claim.  After any final decision, judgment or award shall have
been rendered by a Governmental Authority of competent jurisdiction and the
expiration of the time in which to appeal therefrom, or a settlement shall have
been consummated, or the indemnified party and the indemnifying party shall have
arrived at a mutually binding agreement, in each case with respect to an Third
Party Claim hereunder, the indemnified party shall forward to the indemnifying
party notice of any sums due and owing by the indemnifying party pursuant to
this Agreement with respect to such matter and the indemnifying party shall pay
all of such remaining sums so due and owing to the indemnified party by wire
transfer of immediately available funds within five (5) Business Days after the
date of such notice.

     

    (g) A claim
for indemnification for any matter not involving a Third Party Claim may be
asserted by notice to the party from whom indemnification is sought; provided,
however, that failure to so notify the indemnifying party shall not preclude the
indemnified party from any indemnification which it may claim in accordance with
this Article VIII.

     

    (h) The
parties agree to treat any indemnity payment made pursuant to this Article VIII
as an adjustment to the Purchase Price for all applicable Tax
purposes.  If, notwithstanding the treatment required by the preceding
sentence, any indemnification payment under Article VIII is determined to be
taxable to the party receiving such payment by any Taxing Authority, the paying
party shall also indemnify the party receiving such payment for any net
increased Tax cost incurred by reason of the receipt of such payment and any
Losses incurred by the party receiving such payment in connection with such
Taxes (or any asserted deficiency, claim, demand, action, suit, proceeding,
judgment or assessment, including the defense or settlement thereof, relating to
such Taxes).  The amount of any Loss for which indemnification is
provided under this Agreement shall be reduced to take account of any net Tax
benefit actually realized by the indemnified party arising from incurring or
paying such Loss.

     

    (i) Except
with respect to claims against the Limited Guarantors pursuant to Section 2.5,
claims relating to fraud, claims for specific performance or injunctive relief,
remedies available under other Transaction Document, rights of Purchaser set
forth in the DUS Note, the Dynex Fannie Mae Note, the Dynex Freddie Mac Note,
and the Holdback Note to set-off against amounts payable under such notes, and
resolution by Independent Accountants pursuant to Section 2.4 of certain
matters relating to the Adjustment Amount, from and after the Closing Date,
indemnification in accordance with this Article VIII shall be the sole and
exclusive remedy for any breach or failure to be true and correct, or alleged
breach or failure to be true and correct, of any representation or warranty or
any covenant or agreement in this Agreement and the Parties shall not be
entitled to any further indemnification rights or claims of any nature
whatsoever in respect thereof, all of which the Parties hereby
waive.  Notwithstanding

     

    


    
      
        
           


        

        
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    anything
to the contrary in this Agreement or any other Transaction Document, in the
event that a Bankruptcy Order has been issued on or prior to the Closing Date,
the Sellers’ maximum monetary liability under this Agreement shall be
$10,000,000, such amount being in addition to and without limiting rights of the
Purchaser (A) set forth in the DUS Note, the Dynex Fannie Mae Note, the
Dynex Freddie Mac Note, and the Holdback Note to set-off against amounts payable
under such notes and (B) under the other Transaction Documents; provided, however, that nothing
herein shall limit the Sellers’ liability to pay any Adjustment Amount due to
the Purchaser pursuant to Section 2.4 or any other amounts or fees payable
by a Seller pursuant to Sections 2.4(e)(iv), 5.4, 5.7(f), 5.12 and
10.4.

     

    ARTICLE
IX

    TERMINATION
AND ABANDONMENT

     

    SECTION
9.1.   Termination.  This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:

     

    (a) by mutual
consent of the Sellers and the Purchaser; or

     

    (b) by either
the Sellers or the Purchaser:

     

    (i) if a
court of competent jurisdiction or other Governmental Authority shall have
issued a Final Order or ruling or taken any other action (which Order or ruling
the Parties shall use their best efforts to lift), in each case permanently
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement;

     

    (ii) if the
Closing shall not have occurred within the Closing Period; or

     

    (iii) if the
Put Option shall not have been validly exercised in accordance with this
Agreement prior to the Put Termination Date; or

     

    (c) by the
Purchaser, if the Sellers enter into an agreement with any other Person to sell
a material portion of the Acquired Assets, other than sales of loans under
Mortgage Programs in the Ordinary Course of Business; or

     

    (d) by the
Sellers at any time prior to the Put Termination Date provided that the Put Option
shall not have been validly exercised in accordance with this Agreement prior to
such termination by the Sellers;

     

    provided, however, that the
right to terminate this Agreement shall not be available to any Party whose
breach of this Agreement has been the cause of, or resulted in, the failure of
the Closing to occur on or before such date.

     

    SECTION
9.2.   Procedure and Effect of
Termination.  In the event of termination and abandonment of
the transactions contemplated hereby pursuant to Section 9.1,

     

    


    
      
        
           


        

        
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    written
notice thereof shall forthwith be given to the other Parties and this Agreement
shall terminate and the transactions contemplated hereby shall be abandoned,
without further action by any of the Parties.  If this Agreement is
terminated as provided herein, this Agreement shall become null and void and no
Party shall have any liability or further obligation to any other Party to this
Agreement resulting from such termination except (a) that the provisions of
this Section 9.2 shall remain in full force and effect, (b) no Party waives
any claim or right against a breaching Party to the extent that such termination
results from the breach by a Party hereto of any of its representations,
warranties, covenants or agreements set forth in this Agreement and the Sellers
or the Purchaser may seek such remedies, including damages and/or specific
performance, against the other with respect to such breach as provided in this
Agreement, or, in the case of fraud or willful breach, as are otherwise
available at Law or in equity, and (c) the confidentiality provisions
contained in Section 5.8 and the expense provisions contained in Section 10.4
shall survive termination.

     

    ARTICLE
X

    MISCELLANEOUS
PROVISIONS

     

    SECTION
10.1.   Survival of Representations
and Warranties.  The representations and warranties of the
Parties contained in this Agreement or in any certificate delivered pursuant to
this Agreement shall survive the Closing through and including the second
anniversary of the Closing Date; provided, however, that the
representations and warranties set forth in the Sections 3.1, 3.2, 3.3, 3.7, 4.1
and 4.2 shall survive the Closing without limitation (in each case, the “Survival Period”);
provided further, however, that any
obligations under Article VIII (Indemnification) shall not terminate with
respect to any Losses (as hereinafter defined) as to which the Person to be
indemnified shall have given notice (stating in reasonable detail the basis of
the claim for indemnification) to the indemnifying party in accordance with said
Article VIII before the termination of the applicable Survival
Period.  Except as otherwise provided in this Agreement, all
agreements and covenants contained in this Agreement shall survive the Closing
without limitation or until, by their respective terms, they are no longer
operative.  Notwithstanding anything to the contrary in this Agreement
or any other Transaction Document, in the event that a Bankruptcy Order has been
issued on or prior to the Closing, the Survival Period with respect to all of
the Sellers’ representation and warranties set forth in this Agreement shall all
expire on the second anniversary of the Closing Date, subject to the second
proviso in the first sentence of this Section 10.1.

     

    SECTION
10.2.   Amendment and
Modification.  This Agreement may be amended, modified or
supplemented or any provision of this Agreement may be waived; provided that any
such amendment, modification, supplement, waiver or discharge shall be binding
upon the Sellers, on the one hand, and the Purchaser, on the other hand, only if
set forth in a writing executed by the Sellers and the Purchaser and referring
specifically to the provision alleged to have been amended, modified,
supplemented or waived (for the avoidance of doubt, waiver in writing by
Purchaser of any condition in Section 6.1 shall be effective without any
agreement thereto by Sellers).  No course of dealing between or among
any persons having any interest in this Agreement or failure to

     

    


    
      
        
           


        

        
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    insist on
strict compliance with any of the terms or conditions hereof shall be deemed
effective to amend, modify, supplement, waive or discharge any part of this
Agreement or any rights or obligations of any person under or by reason of this
Agreement, nor shall any waiver or relinquishment of, or failure to insist upon
strict compliance with, any right or power hereunder at any one or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.

     

    SECTION
10.3.   Validity.  The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.

     

    SECTION
10.4.   Expenses and
Obligations.

     

    (a) All costs
and expenses incurred in connection with the consummation of the transactions
contemplated by this Agreement by the Purchaser shall be paid by the Purchaser,
and all costs and expenses incurred in connection with the consummation of the
transactions contemplated by this Agreement by the Sellers shall be paid by the
Sellers; provided that, notwithstanding
the foregoing, (i) the Purchaser shall be entitled to control all
negotiations to obtain consents applicable to software or other Intellectual
Property licenses and the Sellers, on the one hand, and the Purchaser, on the
other hand, shall each pay fifty percent (50%) of any related consent fees and
of all costs and expenses otherwise incurred for the Purchaser to establish
information technology and phone systems appropriate to operate the Mortgage
Business and to obtain the benefits of the Straddle Contracts contemplated in
Section 5.4(g), provided that the Sellers’ payment obligations under this
clause (i) shall be limited to $3,000,000; (ii) the Purchaser will pay
any filing fees to obtain Licenses for Purchaser from state Governmental
Authorities; and (iii) the Sellers, on the one hand, and the Purchaser, on
the other hand, shall each pay fifty percent (50%) of any filing fees and
expenses and any consent fees required to satisfy the conditions set forth in
Section 6.1(a) and 6.1(g).

     

    (b) If (1)
the Put Option shall have been validly exercised in accordance with this
Agreement prior to the Put Termination Date, (2) this Agreement shall have been
terminated by the Purchaser pursuant to Section 9.1(b)(ii), and (3) as of the
date of such termination the only condition or conditions set forth in
Section 6.1 that shall not have been satisfied (or waived by the Purchaser)
is one or more conditions set forth in Section 6.1(a), Section 6.1(g),
6.1(h) or 6.1(i), then the Purchaser shall pay to Parent $20,000,000 (the “Purchaser Termination
Fee”).

     

    SECTION
10.5.   Specific
Performance.  The Parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached.  It is accordingly agreed that the Parties shall be entitled
to, in addition to any other remedies at law or otherwise, specific performance
of this Agreement or an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement.

     

    


    
      
        
           


        

        
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    SECTION
10.6.   Auction
Process.   The Parties acknowledge that this Agreement is
the culmination of an extensive process undertaken by the Sellers to identify
and negotiate a transaction with a bidder who was prepared to maximize the value
for the Sellers’ constituents.

     

    SECTION
10.7.   Parties in
Interest.  This Agreement shall be binding upon and, except as
provided below, inure solely to the benefit of each Party hereto, and nothing in
this Agreement, express or implied, is intended to confer upon any other Person
any rights or remedies of any nature whatsoever under or by reason of this
Agreement.

     

    SECTION
10.8.   Construction.  The
Parties have participated jointly in the negotiation and drafting of this
Agreement.  In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.

     

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

     

    SECTION
10.10.   Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed given upon the earlier of delivery thereof if by hand or upon receipt if
sent by mail (registered or certified, postage prepaid, return receipt
requested) or on the second next Business Day after deposit if sent by a
recognized overnight delivery service or upon transmission if sent by telecopy
or facsimile transmission (with request of assurance of receipt in a manner
customary for communication of such type) as follows:

     

    (a) If to the
Purchaser, to:

     

    Berkadia
III, LLC

    c/o  Leucadia
National Corporation

    315 Park
Avenue South

    New York,
NY 10010

    Attention:
Thomas E. Mara

    Joseph A. Orlando

    Telecopy:
(212) 598-3215

     

    with a
copy to:

     

    Weil,
Gotshal & Manges LLP

    767 Fifth
Avenue

    New York,
NY 10153

    Attention:
Andrea Bernstein, Esq.

    


    
      
        
           


        

        
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    William Gutowitz, Esq.

    Telecopy:
(212) 310-8007

     

    and

     

    Munger,
Tolles & Olson LLP

    355 South
Grand Avenue, 35th Floor

    Los
Angeles CA 90071-1560

    Attention:
Robert E. Denham

    Telecopy:
(213) 683-5104

     

    (b) If to the
Sellers, to:

     

    Capmark
Financial Group Inc.

    116 Welsh
Road

    Horsham,
PA 19044

    Attention:
Thomas L. Fairfield, Esq.

    Telecopy:  (215)
328-3674

     

    and

     

    Capmark
Finance Inc.

    116 Welsh
Road

    Horsham,
PA 19044

    Attention:  Thomas
L. Fairfield, Esq.

    Telecopy:  (215)
328-3674

    


    Capmark
Capital Inc.

    116 Welsh
Road

    Horsham,
PA 19044

    Attention:  Thomas
L. Fairfield, Esq.

    Telecopy:  (215)
328-3674

     

    with a
copy to:

     

    Dewey
& LeBoeuf LLP

    1301
Avenue of the Americas

    New York,
NY 10019

    Attention:  John
Altorelli, Esq.

    Telecopy:  (212)
632-0367

     

    SECTION
10.11.   Governing
Law.  This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed entirely within such State.

     

    


    
      
        
           


        

        
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    SECTION
10.12.   Counterparts.  This
Agreement may be executed in two or more counterparts (including by means of
telecopied signature pages), each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.

     

    SECTION
10.13.   Headings.  The
article and section headings contained in this Agreement are solely for the
purpose of reference, are not part of the agreement of the Parties and shall not
affect in any way the meaning or interpretation of this Agreement.

     

    SECTION
10.14.   Entire
Agreement.  This Agreement, the Sellers Disclosure Schedule,
the Purchaser Disclosure Schedule, the other Transaction Documents and the
schedules, annexes and exhibits attached hereto embody the entire agreement and
understanding of the Parties in respect of the subject matter contained herein
or therein.  There are no agreements, representations, warranties or
covenants other than those expressly set forth herein or
therein.  This Agreement, the Sellers Disclosure Schedule, the
Purchaser Disclosure Schedule, the other Transaction Documents and the
schedules, annexes and exhibits attached hereto and thereto supersede all prior
agreements and understandings between the Parties with respect to such subject
matter.  The schedules, annexes and exhibits attached hereto are
incorporated herein by reference and made a part hereof.

     

    SECTION
10.15.   Assignment.  This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns.  No
Party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Parties,
except that (a) each of the Sellers may assign its benefits (but not
obligations) under this Agreement to an Affiliate of the Sellers and (b)
Purchaser may assign this Agreement, without the consent of any other Party, (i)
to any Affiliate of the Purchaser, (ii) after the Closing, to any Person from
which the Purchaser has borrowed money or (iii) after the Closing, to any Person
to which the Purchaser proposes to sell or otherwise transfer all or a
substantially all of the Acquired Assets.

     

    SECTION
10.16.   Jurisdiction and
Venue.  Each of the Parties irrevocably and unconditionally
submits to the exclusive jurisdiction of the United States District Court for
the Southern District of New York or any New York State court sitting in
Manhattan for the purposes of enforcing this Agreement.  In any
action, suit or other proceeding, each of the Parties irrevocably and
unconditionally waives and agrees not to assert by way of motion, as a defense
or otherwise any claims that it is not subject to the jurisdiction of the above
courts, that such action or suit is brought in an inconvenient forum or that the
venue of such action, suit or other proceeding is improper.  Each of
the Parties also agrees that any final and nonappealable judgment against a
Party in connection with any action, suit or other proceeding shall be
conclusive and binding on such Party and that such award or judgment may be
enforced in any court of competent jurisdiction, either within or outside of the
United States.  A certified or exemplified copy of such award or
judgment shall be conclusive evidence of the fact and amount of such award or
judgment.

     

    


    
      
        
           


        

        
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    SECTION
10.17.   Waiver of Jury
Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT AND ANY OTHER DOCUMENT REQUIRED TO BE DELIVERED HEREBY
OR THE TRANSACTIONS PROVIDED FOR HEREBY.

     

    SECTION
10.18.   Interpretation.  When
a reference is made in this Agreement to an Article, a Section or Schedule, such
reference shall be to an Article of, a Section of, or Schedule to, this
Agreement unless otherwise indicated.  The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.  Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words
“without limitation”.  The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.  References to “this Agreement” shall include the schedules
hereto.  The inclusion of any item in the schedules hereto shall not
be deemed to be an admission or evidence of materiality of such item, nor shall
it establish any standard of materiality for any purpose
whatsoever.  All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.  The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term.  Any Law defined or referred
to herein or in any Contract or instrument that is referred to herein means such
Law as from time to time amended, modified or supplemented, including by
succession of comparable successor Laws.  References to a Person are
also to its permitted successors and assigns.

     

    [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

    


    


    
      
        
           


        

        
          76

          
            

          

        

        
           


        

      

    

    


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

     

    
      	 
      	
              CAPMARK
      FINANCE INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              CAPMARK
      CAPITAL INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              CAPMARK
      FINANCIAL GROUP INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              BERKADIA
      III, LLC

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      


    

    


     

    


    
      
        
           


        

        
          77

          
            

          

        

        
           


        

      

    

    


    


    
      	 
      	
              Agreed,
      with respect to Sections 2.5, 10.5, 10.7, 10.11, 10.16 and 10.17
      only:

            
	 
      	 
      
	 
      	
              LEUCADIA
      NATIONAL CORPORATION

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              BERKSHIRE
      HATHAWAY INC.

            
	 
      	 
      	 
      
	 
      	
              By:

            	 
      
	 
      	
              Name:

            	 
      
	 
      	
              Title:

            	 
      


    

    


     

     

     

     

     

     

    


    
      
        
          78

        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
A

    


    Form
of DUS Note

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    BERKADIA
III, LLC

     

    DUS
NOTE

     

     

    
      	$75,000,000 	 New York, New York
	 	 Dated: [CLOSING
DATE]


    

     

    FOR VALUE
RECEIVED, the undersigned, BERKADIA III, LLC, a Delaware limited liability
company (“Berkadia”), hereby promises to pay to Capmark Finance Inc. (“Capmark”)
an amount, equal to the then-outstanding Principal Balance (as hereinafter
defined), on [FIFTH ANNIVERSARY OF CLOSING DATE] (and/or on such later date(s),
all as and to the extent provided in paragraphs 2 and 5 below), in lawful money
of the United States of America.  The Principal Balance outstanding on
the date hereof is $75,000,000, and such Principal Balance shall automatically
be reduced from time to time by (i) payments of principal under this Note
pursuant to paragraphs 2 and 5 below and (ii) reductions of the Principal
Balance pursuant to paragraphs 3 and 5 below.

     

    1.  Interest.  Berkadia
shall pay interest on the Principal Balance from time to time outstanding from
the date of this DUS Note (this “Note”) through and including the Final Date (as
hereinafter defined), quarterly in arrears on the last day of each September,
December, March and June (the calendar quarter ending on each such date, a
“Quarterly Interest Period”) and on the Final Date, (or, if any such day is not
a Business Day (as hereinafter defined), on the next succeeding Business Day)
(each, a “Payment Date”), as follows:

     

    (i) the
interest payable in respect of each Quarterly Interest Period (other than the
Quarterly Interest Period during which the Final Date occurs) shall equal 1.467%
times the weighted average Principal Balance outstanding during such Quarterly
Interest Period, determined taking into account all reductions to and payments
of such Principal Balance occurring during such Quarterly Interest Period (and,
in the case of the initial Quarterly Interest Period, prorated for a partial
Quarterly Interest Period if applicable); and

     

    (ii) the
interest payable in respect of the Quarterly Interest Period during which the
Final Date occurs shall equal 1.467% times the weighted average Principal
Balance outstanding during such Quarterly Interest Period, determined after
taking into account all reductions to and payments of such Principal Balance
occurring during such Quarterly Interest Period (prorated for a partial
Quarterly Interest Period if applicable).

     

    2.  Principal.  On
the Fifth Anniversary, there shall become due and payable hereunder a portion of
the then-outstanding Principal Balance equal to the positive excess, if any, of
(a) the outstanding Principal Balance hereunder on such Fifth

     

    


    
      
        
           


        

        
          Exhibit A
- 1

          
            

          

        

        
           


        

      

    

    


    Anniversary
minus (b) the Aggregate 90% Maximum Loss Amount as of the Fifth Anniversary (as
set forth in the Defaulted/Troubled Loan Notice referred to
below).  After the Fifth Anniversary, payments of outstanding
Principal Balance shall become due and payable from time to time as and to the
extent provided in paragraph 5 below.

     

    3.  Reductions in Principal
Balance Prior to Fifth Anniversary.  On each Payment Date
(other than the Fifth Anniversary), the Principal Balance shall be reduced (but
not below zero) by an amount equal to ninety percent (90%) of the amount of
Credit Losses in respect of the DUS Loans and MultiTrak Loans during the
Quarterly Measurement Period immediately preceding such Payment Date, as
reflected in the related Credit Loss Notice referred to
below.  Berkadia shall provide Capmark with written notice (each, a
“Credit Loss Notice”) within five (5) Business Days after the end of the
relevant Quarterly Measurement Period setting forth in reasonable detail the
Credit Losses for such Quarterly Measurement Period.  Capmark shall be
entitled to dispute such Credit Loss Notice within five (5) Business Days of its
receipt of such Credit Loss Notice by delivering a written notice to Berkadia
(setting forth such disputes in reasonable detail) within such five (5) Business
Day period.  If Capmark so disputes the amount of such Credit Losses,
the parties shall seek to resolve such dispute in good faith.  The
parties agree that Fannie Mae’s determination of (or any settlement agreed to by
Fannie Mae and Berkadia as to) the Total Lender Loss or Approved Loss for any
DUS Loan or MultiTrack Loan shall be conclusive evidence thereof for purposes of
determining the amount of the Credit Losses in respect of such DUS Loans and
MultiTrak Loans.  If it is determined that the actual Credit Losses in
respect of such Quarterly Measurement Period were less than the Credit Losses
set forth in the related Credit Loss Notice, then (i) Berkadia shall increase
the Principal Balance by ninety percent (90%) of the amount of such difference
(but only to the extent that the Principal Balance was actually reduced by such
difference pursuant to this paragraph 3), and (ii) Berkadia shall pay Capmark
the additional interest hereunder that would have been payable had the Principal
Balance used to calculate interest for the relevant Quarterly Interest Period
included such increased amount, plus interest on such additional interest from
the relevant Payment Date to the date when paid, prorated to the date of
payment.

     

    4.  Computation of
Aggregate 90% Maximum Loss Amount as of Fifth Anniversary.  On
the Fifth Anniversary, Berkadia shall deliver to Capmark written notice (a
“Defaulted/Troubled Loan Notice”) setting forth in reasonable detail (i) the
Defaulted/Troubled Loans as of a date not earlier than the fifth (5th) Business
Day prior to the Fifth Anniversary, the basis for such MultiTrak Loan or DUS
Loan being treated as a Defaulted/Troubled Loan, and the principal amount and
accrued interest in respect of each such loan as of such date (all loans set
forth on the Defaulted/Troubled Loan Notice being hereinafter referred to as the
“Specified D/T Loans”), (ii) the Maximum Loss Amount and 90% Maximum Loss Amount
in respect of each such loan and (iii) the Aggregate 90% Maximum Loss Amount as
of the Fifth Anniversary.  Capmark shall have the right to dispute the
amounts set forth in such Defaulted/Troubled Loan Notice by delivering a written
notice to Berkadia (setting forth such disputes in reasonable detail) within
five (5) Business Days of Capmark’s receipt of such Defaulted/Troubled Loan
Notice.  If Capmark disputes any such amounts, the parties shall seek
to resolve such dispute in good faith.  If the parties are unable to
resolve such dispute, the dispute

     

    


    
      
        
           


        

        
          Exhibit A
- 2

          
            

          

        

        
           


        

      

    

    


    shall be
submitted to an arbitrator selected by each of the parties for
resolution.  If it is determined that the actual Aggregate 90% Maximum
Loss Amount as of the Fifth Anniversary is less than the Aggregate 90% Maximum
Loss Amount set forth in the Defaulted/Troubled Loan Notice, then Berkadia shall
pay to Capmark the positive difference, if any, of (x) the principal payment
that would have been due hereunder on the Fifth Anniversary pursuant to the
first sentence of paragraph 2 had the actual Aggregate 90% Maximum Loss Amount
been utilized in such computation minus (y) the principal payment due on the
Fifth Anniversary pursuant to the first sentence of paragraph 2 computed
utilizing the Aggregate 90% Maximum Loss Amount as set forth on the
Defaulted/Troubled Loan Notice (plus interest on such difference, at the rate of
6% per annum, for the period from the Fifth Anniversary to the date of such
payment.)

     

    5.  Principal Payments After the Fifth
Anniversary.  (a) Immediately upon any Final Determination with
respect to a Specified D/T Loan following the Fifth Anniversary, (i) the
Principal Balance shall be reduced by an amount equal to 90% of the Credit Loss
in respect of such Specified D/T Loan, determined based on such Final
Determination and (ii) the Aggregate 90% Maximum Loss Amount shall be reduced by
an amount equal to the 90% Maximum Loss Amount with respect to such Specified
D/T Loan.  Within five (5) Business Days after any such Final
Determination following the Fifth Anniversary, there shall become due and
payable hereunder a portion of the then-outstanding Principal Balance
(determined after taking into account all previous reductions in the Principal
Balance) equal to the positive excess, if any, of (x) such then-outstanding
Principal Balance minus (y) the Aggregate 90% Maximum Loss Amount (determined
after taking into account all previous reductions in such Aggregate 90% Maximum
Loss Amount).

     

    (b)           Immediately
upon any Specified D/T Loan either (i) being paid in full following the Fifth
Anniversary or (ii) not having been a Defaulted/Troubled Loan at any time during
any period of six (6) consecutive months following the Fifth Anniversary, the
Aggregate 90% Maximum Loss Amount shall be reduced by an amount equal to the 90%
Maximum Loss Amount with respect to such Specified D/T Loan.  Within
five (5) Business Days after any such Specified D/T Loan being paid in full or
no longer being a Defaulted/Troubled Loan, in either event following the Fifth
Anniversary, there shall become due and payable hereunder a portion of the
then-outstanding Principal Balance (determined after taking into account all
previous reductions in the Principal Balance) equal to the positive excess, if
any, of (x) such then-outstanding Principal Balance minus (y) the Aggregate 90%
Maximum Loss Amount (determined after taking into account all previous
reductions in such Aggregate 90% Maximum Loss Amount).

     

    6.  Definitions.  Capitalized
terms used in this Note shall have the following meanings:

     

    “Aggregate
90% Maximum Loss Amount” as of any date means the sum of the 90% Maximum Loss
Amounts with respect to all of the Specified D/T Loans, as such Aggregate 90%
Maximum Loss Amount may have been reduced prior to such date pursuant to
paragraph 5 above.

     

    


    
      
        
           


        

        
          Exhibit A
- 3

          
            

          

        

        
           


        

      

    

    


    


     

    “Average
Occupancy Rate” with respect to any DUS Loan or MultiTrak Loan as of any date
means the average occupancy rate for the real property securing such DUS Loan or
MultiTrak Loan during the most recently completed 12-month period prior to such
date; provided that if the Borrower shall not have provided to Berkadia
information sufficient for Berkadia to determine the Average Occupancy Rate as
of such date and, in Berkadia’s good faith judgment, such Average Occupancy Rate
would likely be revealed to be less than 85% if such information had been
provided to Berkadia, then such Average Occupancy Rate shall be deemed to be
less than 85%.

     

    “Borrower”
has the meaning set forth in the Put Agreement.

     

    “Business
Day” means a day other than a Saturday or Sunday and on which banks are open for
general banking business in New York City.

     

    “Closing
Date” has the meaning set forth in the Put Agreement.

     

    “Credit
Loss” means, in respect of a DUS Loan or MultiTrak Loan, all amounts from time
to time payable to Fannie Mae in respect of loss sharing with respect to such
DUS Loan or MultiTrak Loan pursuant to the Fannie Mae DUS Program or the
MultiTrak Program (or any settlement with Fannie Mae of any claim with respect
to such loss sharing), including the amount of (a) in the case of a DUS Loan,
the Total Lender Loss (as defined in the DUS Guide) as finally determined by
Fannie Mae, (b) in the case of a MultiTrak Loan, the Approved Losses (as defined
in the Mortgage Loan Purchase, Servicing and Intercreditor Agreement), as
finally determined by Fannie Mae, and (c) if Berkadia exercises its option to
purchase the Note or the collateral securing such DUS Loan or MultiTrak Loan,
(x) the costs and expenses incurred in connection with such purchase less (y)
the difference of (A) the net proceeds received by Berkadia from the sale,
transfer, lease or other disposition of such Note or collateral minus (without
duplication) (B) the net financing and other costs and expenses incurred by
Berkadia to purchase such Note or collateral and to hold such Note or collateral
until its disposition and the costs and expenses actually incurred by Berkadia
in connection with such disposition and, with respect to clauses (a), (b) and
(c), after deduction (without duplication) of:  (i) the amount of late
charges, default interest and other similar fees paid by the Borrower thereunder
and actually received by Berkadia with respect to such Defaulted Loan after the
date of any reduction to the Principal Balance as a consequence of such Credit
Loss; and (ii) the aggregate amount of the proceeds from each insurance policy
providing coverage for such Credit Loss on such DUS Loan or MultiTrak Loan
actually received by Berkadia minus expenses actually incurred by Berkadia in
connection with each such insurance claim.  If Berkadia, subsequent to
any reduction of the Principal Balance on account of a Credit Loss hereunder,
recovers any net insurance proceeds referred to in clause (ii) above in respect
of losses included in the calculation of such Credit Loss, the Principal Balance
hereunder shall automatically be deemed increased by the extent to which such
Principal Balance reduction would not have occurred had such insurance proceeds
been taken into account under clause (ii) above in originally computing such
Credit Loss.  For purposes of computing the Credit Loss arising out of
costs or expenses in connection with any purchase by Berkadia from Fannie Mae of
the Note or collateral securing such DUS Loan or MultiTrak Loan, the amount
of

     

    


    
      
        
           


        

        
          Exhibit A
- 4

          
            

          

        

        
           


        

      

    

    


    such
costs and expenses included as a Credit Loss pursuant to clause (c) above shall
not exceed the aggregate amount of the Total Lender Loss or Approved Losses (as
the case may be) and other loss sharing obligations to Fannie Mae with respect
to such DUS Loan or MultiTrak Loan that would have arisen had such purchases not
been made.

     

    “Debt
Service” means, with respect to a Borrower for any period, the sum of (i)
interest and mandatory principal repayments required to be paid by such Borrower
during such period plus (ii) all reserves required to be funded by such Borrower
during such period pursuant to the related Serviced Loan Documents.

     

    “Defaulted/Troubled
Loan” as of any date means a MultiTrak Loan or DUS Loan in respect of
which:

     

    
      	
               
      

            	
              (a)

            	
              the
      Borrower has failed to pay when due any payment(s) required with respect
      thereto and (other than in the case of defaults with respect to principal
      payments) such payment failure has continued for at least thirty (30)
      consecutive days; provided that such default is continuing on the such
      date;

            


    

     

    
      	
               
      

            	
              (b)

            	
              there
      exists as of such date any payment or material non-payment breach of or
      default under the applicable Serviced Loan Documents relating to such DUS
      Loan or MultiTrak Loan that has not been cured as of such
      date;

            


    

     

    
      	
               
      

            	
              (c)

            	
              any
      bankruptcy or insolvency event of default under the applicable Serviced
      Loan Documents for such MultiTrak Loan or DUS Loan has occurred and is
      continuing on such date (including the commencement of a Legal Proceeding
      seeking liquidation, reorganization or other relief with respect to such
      Borrower or such Borrower’s debts under any bankruptcy, insolvency or
      other similar law);

            


    

     

    
      	
               
      

            	
              (d)

            	
              any
      bankruptcy or insolvency event of default under the applicable Serviced
      Loan Documents for such MultiTrak Loan or DUS Loan has occurred on or
      before such date and Credit Losses with respect to such Serviced Loan have
      been actually incurred on or before such
date;

            


    

     

    
      	
               
      

            	
              (e)

            	
              the
      DSCR of the Borrower in respect of such DUS Loan or MultiTrak Loan as of
      such date is less than 1.05; or

            


    

     

    
      	
               
      

            	
              (f)

            	
              the
      Average Occupancy Rate with respect to such DUS Loan or MultiTrak Loan as
      of such date is less than 85%.

            


    

     

    “DSCR”
means, with respect to a Borrower as of any date of determination (i) such
Borrower’s EBITDA for then most recently completed six month period, (ii)
divided by such Borrower’s Debt Service for such period; provided that if the
Borrower shall not have provided to Berkadia information sufficient for Berkadia
to determine the DSCR as of such date and, in Berkadia’s good faith judgment,
such DSCR would likely 

    


    
      
        
           


        

        
          Exhibit A
- 5

          
            

          

        

        
           


        

      

    

    


    be
revealed to be less than 1.05 if such information had been provided to Berkadia,
then such DSCR shall be deemed to be less than 1.05.

     

    “DUS
Guide” means the Fannie Mae Delegated Underwriting and Servicing
Guide.

     

    “DUS
Loans” means those Serviced Loans sold by a Seller and purchased by Fannie Mae
pursuant to the Fannie Mae DUS Program on or prior to the Closing
Date.

     

    “DUS Loss
Sharing Agreement” means the Delegated Underwriting and Servicing Master Loss
Sharing Agreement between Fannie Mae and Capmark, as amended or modified from
time to time.

     

    “EBITDA”
means earnings before interest, taxes, depreciation and
amortization.

     

    “Fannie
Mae” means the Federal National Mortgage Association.

     

    “Fannie
Mae DUS Program” means the Fannie Mae Delegated Underwriting and Servicing
Program.

     

    “Fifth
Anniversary” means the fifth anniversary of Closing Date or, if such day is not
a Business Day, the next succeeding Business Day.

     

    “Final
Date” means the first date on which the then-outstanding Principal Balance of
this Note is either paid in full or reduced to zero.

     

    “Final
Determination” with respect to a Specified D/T Loan means the final
determination by Fannie Mae of (or the final settlement by Berkadia and Fannie
Mae with respect to) the Total Lender Loss or Approved Loss for such Specified
D/T Loan.

     

    “Legal
Proceeding” has the meaning set forth in the Put Agreement.

     

    “Maximum
Loss Amount” with respect to a Specified D/T Loan means the maximum potential
Credit Loss in respect of such loan assuming no further payments on or
recoveries in respect of such loan after the Fifth Anniversary.

     

    “Mortgage
Loan Purchase, Servicing and Intercreditor Agreement” means the Mortgage Loan
Purchase, Servicing and Intercreditor Agreement dated as of June 29, 2001
between Capmark and Fannie Mae, as amended or modified from time to
time.

     

    “MultiTrak
Loans” means those Serviced Loans sold by a Seller and purchased by Fannie Mae
pursuant to the MultiTrak Program on or prior to the Closing Date.

     

    “MultiTrak
Program” means MortgageRamp’s MultiTrak(SM) loan program and/or Fannie Mae’s
Aggregation Loan Program.

     

    “90%
Maximum Loss Amount” with respect to a Specified D/T Loan means an amount equal
to 90% of the Maximum Loss Amount with respect to such loan.

     

    


    
      
        
           


        

        
          Exhibit A
- 6

          
            

          

        

        
           


        

      

    

    


    “Put
Agreement” means the Asset Put Agreement, dated as of September 2, 2009, among
Berkadia, Capmark Capital Inc., Capmark and Capmark Financial Group Inc., as the
same may be amended or modified from time to time.

     

    “Quarterly
Measurement Period” means the period commencing on October 1, 2009 and ending on
December 15, 2009 (or, if such day is not a Business Day, on the next succeeding
Business Day), with respect to the first Quarterly Period, and thereafter
commencing on the last day of the previous Quarterly Period and ending on the
15th day
of each March, June, September and December to occur while this Note is
outstanding.

     

    “Sellers”
means Capmark Capital Inc., Capmark and Capmark Financial Group
Inc.

     

    “Serviced
Loan” has the meaning set forth in the Put Agreement.

     

    “Serviced
Loan Document” has the meaning set forth in the Put Agreement.

     

    7.  Reporting;
Amendments.

     

    (a)  Subject
to the prior written consent of Fannie Mae and applicable restrictions under
Contracts (as defined in the Put Agreement), and solely to the extent permitted
by applicable Law (as defined in the Put Agreement), Berkadia will provide
Capmark with such reports (and such access to information) relating to the DUS
Loans and the MultiTrak Loans as Berkadia provides to Fannie Mae from time to
time under the applicable DUS Program or MultiTrak Program.  Capmark
agrees to keep such information and reports (collectively, “Confidential
Information”) confidential and shall not (i) make such information available to
any third party (except as required by applicable Law) or (ii) use such
information or reports for any purpose other than to monitor the status of the
performance of such DUS Loans and MultiTrak Loans and evaluate the likelihood
(and amount) of any Credit Losses that may arise with respect
thereto.

     

    (b)  Notwithstanding
anything in the foregoing to the contrary, in the event that Berkadia shall
agree, without the written consent of Capmark, to any amendment, modification or
change in Berkadia’s loss sharing arrangements with Fannie Mae under the Fannie
Mae DUS Program or MultiTrak Program after the date of this Note in a manner
that would affect the calculation of Credit Loss in respect of the DUS Loans or
MultiTrak Loans, the calculation of such Credit Loss shall continue to be based
upon the methodology for the calculation thereof as provided in the relevant
agreements in respect of the MultiTrak Program and the Fannie Mae DUS Program
with Capmark in effect as of the time of the Closing under the Put Agreement,
and any dispute as to the calculation of such Credit Loss shall be resolved by
Capmark and Berkadia in good faith or, if Capmark and Berkadia are unable to
resolve such dispute, such dispute shall be resolved by an arbitrator selected
by each of the parties.  The determination of such arbitrator shall be
binding absent manifest error.

     

    


    
      
        
           


        

        
          Exhibit A
- 7

          
            

          

        

        
           


        

      

    

    


    8.  Miscellaneous.  Berkadia
hereby expressly waives notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or notice or demands of any
kind.

     

    This Note
may be transferred or assigned at any time by Capmark; provided that (i) such
transferee or assignee shall be required to agree (in a writing executed by such
transferee and delivered to Berkadia) to be bound by this Note to the same
extent as Capmark and (ii) if either (A) any assignee or transferee of this Note
(or any affiliate thereof) shall be a competitor of Berkadia or (B) Berkadia
determines in good faith that access by such assignee or transferee to the
reports and other information required to be provided pursuant to subparagraph
7(a) hereof would be damaging to Berkadia, then the obligations of Berkadia
pursuant to Section 7(a) shall terminate upon any such transfer or
assignment.

     

    Any
notices or communications to be given under this Note shall be given to the
respective parties in writing as set forth in the Put Agreement.

     

    THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).

     

     

     

     

     

     

     

    


    
      
        
           


        

        
          Exhibit A
- 8

          
            

          

        

        
           


        

      

    

    


     

    IN
WITNESS WHEREOF, Berkadia has caused this Note to be duly executed as of the
date first written above.

     

    


    
      	 
      	 
      	 
      	
              BERKADIA
      III, LLC

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	 
      
	 
      	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	 
      	
              Title:

            	 
      
	 
      	 
      	 
      	 
      	 
      
	
              Accepted
      and Agreed as of the

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
              date
      first above written:

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	
              CAPMARK
      FINANCE INC.

            	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
              By:

            	 
      	 
      	 
      	 
      
	
              Name:

            	 
      	 
      	 
      	 
      
	
              Title:

            	 
      	 
      	 
      	 
      


    

    


    


    


    
      
        
           
Exhibit A - 9

        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
B

    


    Form
of Holdback Note

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
B

    


    FORM OF HOLDBACK
NOTE

    


    This Note has not been registered pursuant to the
Securities Act of 1933, as amended (the “Act”),
or pursuant to the securities or “blue sky” laws of any state or foreign
jurisdiction, and may not be sold or otherwise transferred without registration
or an exemption therefrom pursuant to the Act or any such applicable state or
foreign laws or otherwise in violation of the provisions of this
Note.

    


    BERKADIA
III, LLC

    


    $40,000,000

    


    6%
Non-Negotiable Note

    


    Date of
Issue: [Insert Closing
Date], 2009

    


    FOR VALUE
RECEIVED, BERKADIA III, LLC, a Delaware limited liability company (“Maker”), hereby
promises to pay to CAPMARK FINANCIAL GROUP, INC., a Nevada corporation (“Holder”), the sum of
FORTY MILLION UNITED STATES DOLLARS ($40,000,000) (the “Principal Amount”)
and interest thereon, on and pursuant to the terms and conditions set forth
herein.  This Note is the “Holdback Note” issued pursuant to the Asset
Put Agreement, dated as of [Insert Signing Date], 2009,
among Capmark Finance Inc. (“CFI”), Capmark
Capital Inc. (“CCI”), Holder and
Maker (the “Asset Put
Agreement”).

     

    1. Interest.  Interest
on the outstanding Principal Amount shall accrue at the rate of six percent (6%)
per annum (computed on the basis of a 365 day year and applied to the actual
number of days elapsed in each interest calculation period), quarterly in
arrears on the last day of each March, June, September and December during which
this Note is outstanding, commencing on [●].

     

    2. Maturity;
Acceleration.

     

    (a) The
outstanding Principal Amount and all accrued but unpaid interest thereon shall
be due and payable two (2) years from the date hereof.

     

    (b) In the
event that a Bankruptcy Court Order (as defined in the Asset Put Agreement) is
entered, the outstanding Principal Amount and all accrued but unpaid interest
thereon shall become due and payable on the date that is five (5) Business Days
(as hereafter defined) after the date such Bankruptcy Court Order is
entered.

     

    3. Manner of
Payment.  All payments made by Maker hereunder shall be made in
lawful money of the United States.  If any payment of principal or
interest on this Note is due on a day that is not a Business Day, such payment
shall be due on the next succeeding Business Day, but such extension of time
shall not be included for the purpose of calculating the amount payable on such
succeeding Business Day.  As used in this Note, “Business

     

    


    
      
        
           


        

        
          Exhibit B -
1

          
            

          

        

        
           


        

      

    

    


    Day” means any day
other than a Saturday, Sunday on other day on which banks in the State of New
York are authorized or required by law to close.

     

    4. Prepayment.  The
unpaid principal and interest of this Note may be prepaid in whole or in part
without premium or penalty upon one Business Day’s prior written notice to
Holder.  Any prepayments hereunder shall be applied first, to the
payment of the outstanding Principal Amount until such amount is paid in full
and second, to the payment of accrued and unpaid interest
hereunder.

     

    5. Default.

     

    (a) An event
of default shall exist if any one or more of the following events (an “Event of Default”)
shall occur and be continuing:

     

    (i) Maker
shall fail to pay when due the outstanding Principal Amount or interest thereon;
or

     

    (ii) a case or
proceeding shall be instituted, in a court having competent jurisdiction, by or
against Maker seeking to adjudicate Maker as bankrupt or insolvent, or seeking
liquidation of Maker, under title 11 of the United States Code or any other
similar United States federal or state law relating to bankruptcy or insolvency,
or reorganization or relief of debtors; provided, however, that, in
the case of any such proceedings instituted against Maker (but not instituted by
Maker) either such case or proceedings shall remain undismissed or unstayed for
a period of 45 days or more or such court shall enter a decree or order granting
the relief sought in such case or proceeding.

     

    (b) If any
Event of Default shall have occurred and be continuing, Holder may declare the
outstanding Principal Amount and accrued but unpaid interest thereon immediately
due and payable, upon written notice to Maker to that effect; provided, however, that if
any Event of Default described in Section 5(a)(ii) of this Note occurs, then the
outstanding Principal Amount and accrued but unpaid interest thereon shall
immediately become due and payable without notice or any other
action.

     

    6. Waiver.  Maker
hereby waives presentment for payment, demand, protest and notice of
dishonor.  No delay in enforcement of this Note or in exercising any
right hereunder shall affect the liability of Maker hereunder.

     

    7. Set-off.  If
any amounts are payable by Holder, CFI or CCI (or any of their respective
successors or assigns) to Maker (or any of its successors or assigns) under the
Asset Put Agreement, Maker shall be entitled, at its sole and absolute
discretion, to set off and apply all or any portion of such amounts to amounts
that are or will become due to Holder under this Note.  Maker shall
notify Holder in writing of amounts offset pursuant to this Section
7.

     

    8. Assignment.  This
Note may not be assigned by Holder without Maker’s specific prior written
consent, and any purported assignment without such consent shall be null and
void.

     

    


    
      
        
           


        

        
          Exhibit B -
2

          
            

          

        

        
           


        

      

    

    


    


     

    9. Notices.  All
notices and communications under this Note shall be in writing and shall be
delivered (a) by hand and accompanied by a signed receipt therefor, (b) by
reputable overnight courier or (c) by first-class United States certified mail
return receipt requested, postage prepaid, if to Holder, at 116 Welsh Road,
Horsham, PA 19044, and if to Maker, to [●], [●] (Attention: [●]).

     

    10. Governing
Law.  This Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without regard to
the principles of conflicts of law thereof (other than Section 5-1401 of the New
York General Obligations Law).

     

    IN
WITNESS WHEREOF, Maker has caused this Note to be executed by its duly
authorized officer on the date of issue stated above.

     

    
      	 
      	 
      	 
      	
              BERKADIA
      III, LLC

            
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	
              By:

            	 
      
	 
      	 
      	 
      	
              Name:

            	 
      
	 
      	 
      	 
      	
              Title:

            	 
      


    

     

     

     

     

     

     

    
 

    
      
        
          Exhibit B - 3

        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
C

    


    Terms
of Dynex Fannie Mae Note

    


    
      	
              1.  

            	
              Dynex
      Fannie Mae Note to be substantially in the form of the DUS Note except as
      provided below.

            


    

    


    
      	
              2.  

            	
              Initial
      Principal Amount of Dynex Fannie Mae Note to be equal to the Dynex Fannie
      Mae Note Principal Amount.

            


    

    


    
      	
              3.  

            	
              The
      initial principal payment under the Dynex Fannie Mae Note will be due on
      the 7th
      anniversary of the Closing Date.  The outstanding principal
      amount of the Dynex Fannie Mae Note is to be reduced from time to time by
      100% of the losses realized in respect of the Dynex Fannie Mae
      Loans.

            


    

    


    
      	
              4.  

            	
              Interest
      will be payable quarterly at the same rate and in the same manner as in
      the DUS Note.

            


    

    


    


    


    
      
        
          Exhibit C - 1

        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT
D

    


    Terms
of Dynex Freddie Mac Note

    


    


    


    
      	
              1.  

            	
              Dynex
      Freddie Mac Note to be substantially in the form of the DUS Note except as
      provided below.

            


    

    


    
      	
              2.  

            	
              Initial
      Principal Amount of Dynex Freddie Mac Note to be equal to the Dynex
      Freddie Mac Note Principal Amount.

            


    

    


    
      	
              3.  

            	
              The
      initial principal payment under the Dynex Freddie Mac Note will be due on
      the 7th
      anniversary of the Closing Date.  The outstanding principal
      amount of the Dynex Freddie Mac Note is to be reduced from time to time by
      100% of the losses realized in respect of the Dynex Freddie Mac
      Loans.

            


    

    


    
      	
              4.  

            	
              Interest
      will be payable quarterly at the same rate and in the same manner as in
      the DUS Note.

            


    

    


     

     

     

     

     

     

     

    Exhibit D -
1