Asset Exchange Agreement

Exhibit 10.5 ASSET EXCHANGE AGREEMENT THIS ASSET SALE AGREEMENT is made as of the 5th day of February, 2009, by LEHMAN BROTHERS BANK, FSB , a Federally chartered savings institution (" LBB" ) and CAPITAL CROSSING PREFERRED CORPORATION , a Massachusetts corporation (" CCPC" ). LBB and CCPC are sometimes referred to herein singly as a " Party" and collectively as the " Parties." RECITALS This Agreement contemplates a transaction in which LBB will transfer to CCPC all of the Bank Loans described in the Bank Loan Schedule attached hereto as Schedule A and in consideration for such transfer CCPC will transfer to LBB all of the REIT Loans described in the REIT Loan Schedule attached hereto as Schedule B. AGREEMENT In consideration of the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated. " Adverse Consequences" means all actions, suits, proceedings, hearings, investigations, charges, complaints, Claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, reasonable out-of-pocket expenses and fees, including court costs and attorneys' fees and expenses. " Affiliate" means any Person that, directly or indirectly, controls, or is controlled by or under common control with, another Person. For the purposes of this definition, " control" (including the terms " controlled by" and " under common control with" ), as used with respect to any Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities or by contract or otherwise. " Agreement" means this Asset Exchange Agreement and attachments hereto including, without limitation, all schedules, exhibits and attachments to this Agreement. " Allocated Purchase Price" means, with respect to an Asset, the " Allocated Purchase Price" shown on the Loan Schedule for such Asset.


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" Allonge" means an allonge substantially in the form of Exhibit B to be executed and delivered by the Transferor at Closing to sell, assign and transfer a Note to the Transferee. " Asset" means any Loan. " Asset File" means, with respect to each Asset, all Loan Documents and all documents and correspondence relating to the origination, administration and servicing of the Loan, to the extent same are available and held in the related asset file in the possession of the Transferor, as of the Closing Date, including, without limitation, relevant correspondence, legal opinions, leases, rent rolls, contracts (management, service, repair, etc.), title insurance policies, insurance policies and third party reports; as well as any electronic data, e-files and databases to the extent that same include any of the items listed above for each Asset and are reasonably available for transfer as part of the Asset File. " Asset Group" means a group of two or more Loans, all of which either (a) are secured by all or part of the same Loan Collateral, (b) are interrelated by the fact that a default under one results in a default under one or more of the others, or (c) have the same or similar Obligors. " Asset Repurchase Price" means, the Allocated Purchase Price, plus any customary, reasonable and necessary " out of pocket" costs and expenses, including reasonably incurred and paid protective advances, actually incurred by the Transferee of an Asset during its ownership of such Asset in connection with the collection, administration and servicing of such Asset, minus any principal payments received by the Transferee of an Asset during its ownership of such Asset. " Assignment" means an instrument in substantially the form of Exhibit C to be executed, acknowledged and delivered by the Transferor subsequent to Closing (as provided herein) to sell, assign and transfer the Mortgage securing an individual Loan from the Transferor to the Transferee. " Assignment of Life Insurance" means an instrument in form and substance satisfactory to the Transferee to be executed and delivered by the Transferor at Closing which assigns to the Transferee the Transferor' s rights as secured party under any life insurance policy securing a Loan. " Bank Loan" means a Loan owned on the date hereof by LBB that is identified on the Bank Loan Schedule. " Bill of Sale" means a bill of sale substantially in the form of Exhibit D to be executed and delivered by the Transferor at Closing to sell, assign and transfer to the Transferee all of the rights, title and interests of the Transferor in the Loans and Loan Documents related thereto and any payments arising under such Loans and Loan Documents to the Transferee. " Business Day" means any day other than a Saturday, Sunday, Federal holiday or state holiday in New York, or other day on which banks with offices in New York and Massachusetts are authorized or required to be closed.


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" CCPC" has the meaning set forth in the preface above. " CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq . " Certificate of Defect" means a certificate substantially in the form of Exhibit E , with blanks appropriately completed, which shall identify an Asset with respect to which the Transferee contends there is a material breach of a representation or warranty of the Transferor contained in Section 4. " Claim" means any claim, Liability, proof of claim (including, without limitation, a proof of claim filed in bankruptcy proceedings), demand, lien, complaint, summons, legal, equitable or administrative action, suit, investigation or proceeding of any nature, chose in action, damage, judgment, order, injunction, decree, penalty or fine, and all losses, costs and expenses relating to the foregoing (including, without limitation, attorney' s fees and expenses). " Closing" means the closing of the transactions contemplated by this Agreement in accordance with Section 2.02. " Closing Date" has the meaning set forth in Section 2.02. " Closing Documents" means all documents that under the terms of this Agreement are required to be delivered by LBB or CCPC at Closing. " Closing Statement" means the document substantially in the form of Exhibit A attached hereto and incorporated herein, to be prepared by LBB and executed by LBB and CCPC at Closing. " Cure Period" means, with respect to a Defective Asset, the period of 30 days commencing on the date the Transferor delivers to the Transferee a response to a Certificate of Defect with respect to such Defective Asset in accordance with Section 7.03(b) hereof, which period shall be extended for an additional period of 60 days (for a total of 90 days) provided that the Transferor is pursuing with diligence and good faith the cure of a breach of representation or warranty. " Cut-Off Date" means December 31, 2008. " Defective Asset" means an Asset as to which the Transferor has breached a representation or warranty under Section 4 hereof, which breach has a material adverse effect on the Asset, and the Transferee has timely delivered to the Transferor a Certificate of Defect pursuant to Section 7.03 as to such breach. " Exception Schedule" means the schedule of exceptions and limitations to the representations and warranties made by LBB or CCPC, as applicable, in this Agreement, which schedule is attached to this Agreement and incorporated herein.


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" Governmental Order" has the meaning set forth in Section 8.01(b). " Hazardous Materials" means (a) those substances included with the definitions of any one or more of the terms " hazardous substances," " hazardous materials," " hazardous waste" and " toxic substances" in CERCLA, RCRA, and the Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801, et seq., and in the regulations promulgated pursuant thereto; (b) those substances listed in the United States Department of Transportation Table (49 CFR Section 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) (40 CFR Section 302 and amendments thereto) as hazardous substances; (c) solid waste or hazardous waste as defined by the Environmental Protection Agency regulations at 40 CFR a7261; (d) such other substances, materials and wastes that are or become regulated under applicable local, state or Federal laws, or that are classified as hazardous or toxic under Federal, state or local laws or regulations; and (e) any materials, wastes or substances that are (i) petroleum; (ii) polychlorinated biphenyls; (iii) within the definition of " hazardous substance" set forth in Section 311 of the Clean Water Act (33 U.S.C. Section 1321), or designated as " toxic pollutants" subject to Chapter 26 of the Clean Water Act pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (iv) flammable explosives; (v) radioactive materials; or (vi) friable asbestos. " Interim Period" means the period of time that began on the day after the Cut-Off Date and continuing through the Closing Date. " Knowledge" means, with respect to references to LBB' s Knowledge, the actual knowledge of the officers of LBB who are responsible for the day-to-day management of the Bank Loans or, with respect to references to CCPC' s Knowledge, the actual knowledge of the officers of CCPC who are responsible for the day-to-day management of the REIT Loans. " LBB" has the meaning set forth in the preface above. " Legal Requirement" means any law, statute, ordinance, code, rule, regulation, license, permit, authorization, decision, order, injunction or decree of any governmental entity (or any independent agency or political subdivision thereof) or any court with appropriate jurisdiction. " Liability" means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated and whether due or to become due). " Litigation Matters" means all matters pending in any forum that are related to or arose out of or as the result of any of the Assets including, but not limited to, all arbitrations, mediations and judicial proceedings in any local, county, state or Federal court (including any bankruptcy courts) whether or not the Transferor is a party to or has or has not entered a notice of appearance in such matters. " Loan" means a Bank Loan described in the Bank Loan Schedule or a REIT Loan described in the REIT Loan Schedule or both, as the context may require, and includes (a) the

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obligations evidenced by each Note, any promissory note renewed by a Note and any promissory note renewing any Note; (b) any judgments founded upon a Note, to the extent attributable thereto and any lien arising therefrom; and (c) the proprietary interest of the Transferor in any litigation (including, without limitation, any foreclosure) or bankruptcy to which the Transferor is a party or claimant based upon any such Note. " Loan Collateral" means any real property, machinery, equipment, fixtures and furnishings, inventory, cash, certificates of deposit, securities, leases, guaranties, contract rights, receivables, letters of credit, assignment of life insurance policies and all other property, real or personal, tangible or intangible, new or used, securing a Loan. " Loan Documents" means, with respect to each Loan, the following documents, as and if applicable: (a) The Note, and if applicable, one or more allonges, or if an original Note does not exist, a lost note affidavit, signed in connection with the Loan bearing all intervening endorsements; (b) The original of the loan agreement entered into between the borrower and the lender under the Loan, if any, and all guarantees and indemnities, if any, executed in connection with the Loan; (c) The original, filed Mortgage executed in connection with the Loan, or if the original Mortgage does not exist, a copy of the original with recording information, and if a copy of the original Mortgage does not exist, the Transferor shall, reasonably promptly after Closing, obtain a copy from the applicable recording office and deliver the same to the Transferee; (d) Copies of all documents, if any, relating to the formation and organization of the borrower under the Loan, together with all consents and resolutions delivered in connection with such borrower' s obtaining the Loan; (e) All other documents and instruments evidencing, guaranteeing, insuring or otherwise constituting or modifying or otherwise affecting the Loan, or otherwise executed or delivered in connection with, or otherwise relating to, the Loan, including all documents establishing or implementing any lockbox/cash management arrangements and/or reserve or escrow accounts to be funded by the borrower; (f) The original interest rate cap agreement applicable to the Loan, together with an original of the related assignment of interest rate cap agreement (if any); (g) Intentionally Omitted; (h) Intentionally Omitted; (i) A copy of the opinions of counsel (if any) of the borrower under each Loan;

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(j) A copy of the UCC financing statements, if any, and all necessary UCC continuation statements with evidence of filing thereon or copies thereof certified by such borrower that such financing statements have been sent for filing and UCC assignments; (k) The original mortgagee title insurance policy, if any, together with all endorsements thereto; and (l) Copies of all insurance policies relating to each Mortgaged Property required under the Loan Documents, if any. " Loan Schedule" means the loan schedules attached hereto as Schedule A and Schedule B setting forth as the Cut-Off Date the following information concerning each Loan: (a) The Transferor' s loan or account number; (b) Name and mailing address for each Obligor; (c) Original Principal Balance; (d) Interest rate in effect; (e) Stated maturity date and/or call date; (f) Payment in effect; (g) Last payment date and next due date; (h) Principal Balance as of the Cut-Off Date; (i) Amount of late payment fees and other charges owing; (j) The last known street address of the location of tangible Loan Collateral; (k) A code indicating the type of Primary Loan Collateral, if any, securing the Loan and the priority of the related lien or security interest (e.g., first, second, etc.); (l) The priority of the lien of the Primary Loan Collateral, and if the Loan is not secured by a first and prior lien or security interest in and to the Primary Loan Collateral, a reasonable estimate of the amount of indebtedness secured by the prior liens and security interests as reflected in the Loan Documents as of the Cut-Off Date; (m) A code indicating whether the Loan bears a fixed rate of interest or an adjustable rate of interest, and in the case of adjustable rate Loans, the reset date, adjustment formula and the existence of caps, if any; (n) A code indicating if the Loan is in foreclosure;

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(o) A code indicating the attorney status (i.e., whether the Loan has been referred to an attorney, and if so, the name, address and telephone number of such attorney); (p) The amount of any past due real estate taxes, fees or charges with respect to the Mortgaged Property; (q) Intentionally Omitted; (r) The annualized amount of all real estate taxes due and payable with respect to the Mortgaged Property; (s) A code indicating whether escrows for taxes, insurance or other charges are collected with respect to the Loan and the amount of any such escrows collected but not applied for their designated purposes; and (t) If such is the case, a code indicating that the Loan is not personally guaranteed by one or more guarantors; The Loan Schedule may be in the form of more than one list and/or schedule, collectively setting forth all of the information required. " Lost Note Affidavit" means a lost note affidavit and indemnity in substantially the same form as Exhibit F attached hereto. " Material" or " Materially" means in the case of the breach of any representation or warranty set forth in Article 4 of this Agreement, a breach as to which CCPC or LBB reasonably can demonstrate that the total of: (i) the cost or aggregate cost to cure or remediate such breach, plus (ii) the diminution in value of the Loan as a result thereof, exceeds $10,000.00. " Mortgage" means, with respect to each Loan, a mortgage, deed of trust, deed to secure debt, assignment of rents or leases or other instrument creating or evidencing a lien or security interest in or to any Mortgaged Property that secures such Loan. " Mortgaged Property" means, with respect to each Loan, any real property (excluding fixtures covered by a Security Instrument other than a mortgage) securing such Loan. " Note" means the original executed promissory note evidencing the indebtedness of an Obligor under a Loan, or if an original executed promissory note does not exist, a Lost Note Affidavit, signed in connection with the Loan with a true copy of the Note attached thereto, or other document (original or true copy) which is sufficient to evidence the indebtedness under the Loan, such that the Transferee may enforce an action at law to collect such indebtedness, together with the original of any allonge, rider, addendum or amendment thereto and any assignments thereof. " Obligor" means a borrower, mortgagor, guarantor or judgment debtor under a Loan or other Person who owes payments or is responsible for performance under a Loan.

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" Party" or " Parties" has the meaning set forth in the preface above. " Person" means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or other entity, or a governmental authority (or any department, agency or political subdivision thereof). " Power of Attorney" means an irrevocable limited power of attorney given by the Transferor granting the authority to the representatives of the Transferee named therein to execute such documents and to take such actions as specified therein, all as set forth in the form attached as Exhibit G hereto. " Primary Loan Collateral" means the Loan Collateral specifically set forth in the Loan Schedule. " Principal Balance" means, as of any date of determination, the then unpaid principal balance of a Loan. " RCRA" means the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901, et seq. " REIT Loan" means a Loan owned by CCPC on the date hereof that is identified on the REIT Loan Schedule. " Servicer" [Capital Crossing Servicing Company, LLC], as servicer under that certain loan servicing agreement for the benefit of each of the Transferees. " Subsidiary" means any corporation, limited liability company, partnership or trust with respect to which a specified Person (or a Subsidiary thereof) owns a majority of the equity ownership interests or has the power to vote or direct the management and control thereof. " Transferee" means, with respect to the Bank Loans, CCPC and with respect to the REIT Loans, LBB. " Transferor" means, with respect to the Bank Loans, LBB and with respect to the REIT Loans, CCPC. " UCC" means the Uniform Commercial Code as in effect in the relevant jurisdiction. " UCC Financing Statement" means a financing statement executed and filed pursuant to the UCC as in effect in the relevant jurisdiction.

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2. Exchange/Assignment . 2.01 Exchange and Assignment . On and subject to the terms and conditions of this Agreement, LBB agrees to transfer, assign and sell to CCPC all right, title and interest of LBB in and to the Bank Loans and in consideration for such transfer CCPC agrees to transfer, assign and sell to LBB all right, title and interest of CCPC in and to the REIT Loans. 2.02 Closing . The closing of the transactions contemplated by this Agreement shall take place in accordance with this Section 2.02, and at the offices of LBB located at 1271 Avenue of the Americas, 46 th Floor, New York, New York, 10019, commencing at 9:00 a.m. local time, or at such other place, date or time as the Parties may mutually agree. The closing of the exchange and assignment of the Loans (the " Closing" ) shall occur on or after February 13, 2009, or on such later date as all conditions to Closing set forth in Section 6.01 have been satisfied (the " Closing Date" ). All Closing deliveries, requirements, adjustments and conditions shall be applicable to the Closing Date with respect to the Loans. 2.03 Intentionally Omitted . 2.04 Post Cut-Off Date Payments on Assets . At the Closing, each Transferor shall pay to each Transferee with respect to the Loans transferred to such Transferee an amount equal to the sum of all principal, interest and other payments received by the Transferor (of any kind or nature, including, without limitation, servicing fees paid by an Obligor) during the Interim Period with respect to the Assets transferred to the Transferee at the Closing, whether such payments relate to a period prior to or after the Cut Off Date; provided that the Parties acknowledge that the amounts owed by CCPC and LBB, respectively, pursuant to this Section 2.04 may be set off against amounts due to CCPC or LBB, as applicable, pursuant to this Section 2.04. The Transferee shall be entitled to all payments received on the Assets transferred to the Transferee at Closing (of any kind or nature, including, without limitation, servicing fees paid by an Obligor) after the Interim Period. The payment referenced in this paragraph shall be reflected on the Closing Statement. 2.05 Post-Closing Adjustments . If any of the amounts required to be paid as contemplated by this Agreement cannot be precisely determined at Closing, CCPC and LBB shall make such payment on an estimated basis at Closing. CCPC and LBB shall make a final determination of the amount of such payment or credit, and shall make any appropriate adjusting payments, as soon as practicable following Closing, but in no event later than 30 days after the Closing Date, or as soon thereafter as reasonably practicable in accordance with the good faith efforts of the Parties. The payment referenced in this paragraph shall be reflected on a revised version of the Closing Statement in accordance with this paragraph.

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2.06 Deliveries at Closing With Respect to the Loans . At the Closing with respect to each applicable Loan, the Transferor shall execute and deliver to the Transferee or on behalf of the Transferee to the party designated below: (a) the Note, together with an Allonge from the Transferor to the Transferee. If directed by the Transferee, the Transferor shall deliver the Note and Allonges to any other Person; (b) Intentionally Omitted; (c) Intentionally Omitted; (d) Intentionally Omitted; (e) The Loan Documents (other than the Note) to the Servicer or any other Person; (f) The Asset File to the Servicer or any other Person; (g) The Bill of Sale to the Transferee; (h) Powers of Attorney, in such number as may be reasonably requested by the Transferee; (i) The Closing Statement; and (j) An incumbency certificate of the Transferor together with a certified copy of resolutions of the Transferor' s Board of Directors evidencing appropriate corporate authority for and approval of the transactions contemplated by this Agreement accompanied by a certificate of an officer or in-house legal counsel of the Transferor attesting to the accuracy and continued effectiveness of the resolutions. 2.07 Intentionally Omitted . 2.08 Additional Deliveries . After the Closing, the Transferee shall prepare, execute and deliver to the Transferor for execution a Notice to Obligor of Assignment in the form of Exhibit H attached hereto. Within one hundred eighty (180) days after the Closing, (i) the Transferee shall prepare or cause the Servicer to prepare an Assignment for each Loan and present it for execution by the Transferor, and the Transferor shall thereafter execute such Assignment and make it available to the Transferee or its designee; and (ii) the Transferee shall cause such Assignment to be recorded with the proper recording office and concurrently shall deliver to the custodian under the Loan and Security Agreement a copy of such Assignment with evidence of recording and an assignment of mortgage in blank executed by the Transferee. Following the Closing, upon request by the Transferee, and without payment of further consideration and with no further liability to the Transferee, the Transferor shall execute, acknowledge and deliver or cause to be executed, acknowledged and delivered to the Transferee

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such further instruments, documents and assurances, as may be required from time to time to complete the transactions contemplated by this Agreement, including any such other documents as are customarily delivered by assignors of similar loans and which have been reasonably requested by the Transferee, including without limitation, assignments of life insurance policies, assignments of collateral accounts and assignments of documents or other property which have been pledged to secure a Loan. The Transferor may elect to permit the Transferee to execute and, if not timely executed and delivered by the Transferor, the Transferee shall be permitted to execute on behalf of the Transferor, pursuant to the Power of Attorney, the additional documents described in this Section 2.08 or in a separate writing signed by the Transferor. 2.09 Transfer and Recordation Fees and Taxes; Other Costs . The Transferor shall pay all transfer, filing and recording fees and taxes, reasonable out-of-pocket costs and expenses and all state, county or city documentary taxes, if any, relating to the filing or recording of any Mortgage and any Loan Document or the assignment of any Loan Document in accordance with all Legal Requirements, with the exception of the filing and recording fees for filing of UCC-3 transfers and assignments which will be paid by the Transferee. The Transferee shall be responsible for filing and recording the Transferor' s Closing Documents. The Transferee shall pay all transfer tax, and the Transferee shall prepare the necessary forms in connection with such Closing Documents. The Transferor shall execute such forms to the extent required by Legal Requirements. Any of the foregoing costs which cannot be determined or paid at Closing shall be paid by the Party responsible post-Closing promptly after such amounts are determined or payable. 2.10 Delivery of Files . The Transferee shall take delivery of all Asset Files on the Closing Date. After Closing, the Transferor shall have no responsibility for the safekeeping of the Asset Files and all risk of loss or damage with respect to such files shall be borne by the Transferee. All expenses incurred with respect to the shipment of such files to the Transferee or the Transferee' s agent shall be paid by the Transferee. The Transferee agrees to abide by all Legal Requirements regarding the preservation and maintenance of all Loan Documents and records relating to the Loans transferred to it, including but not limited to the length of time such documents and records are to be retained. After delivery of the Asset Files to the Transferee, the Transferor may continue to use, inspect and make extracts from or copies of such files, to the extent available, in each case upon the Transferor' s reasonable notice to the Transferee and at the Transferor' s expense. 2.11 Intentionally Omitted . 2.12 Insurance; Notices to Insurance Carriers . The Transferor shall as soon as is commercially reasonably practicable after Closing, provide to the Transferee a listing of all forced placed insurance in place with respect to the Loan Collateral, and the Transferor shall execute and deliver to the Transferee notices of the assignment (in a form acceptable to the Transferee) of the Transferor' s interest under any casualty or life insurance policies carried by Obligors. At or promptly following its receipt of such notices of assignment, the Transferee shall, at its expense, transmit such notices to such carriers. The Transferor shall not be obligated to continue any insurance maintained by it after Closing.

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2.13 Conditional Delivery of Closing Documents . In order to expedite Closing, each Party shall have the right to execute and deliver Closing Documents (in the forms required by this Agreement and dated as of the Closing Date determined in accordance with this Agreement) to the other Party prior to Closing. Each such delivery prior to Closing shall be subject to the conditions subsequent (without the necessity of the delivering Party repeating such conditions upon any such delivery ...