Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

AMONG

ZAIS FINANCIAL CORP.,

ZAIS Financial Partners, L.P. ,

ZAIS MERGER SUB, LLC,

SUTHERLAND ASSET MANAGEMENT CORPORATION AND

SUTHERLAND PARTNERS, L.P.

DATED AS OF APRIL 6, 2016

TABLE OF CONTENTS

EXHIBITS

Exhibit A-1 – Company Termination Agreement
Exhibit A-2 – Sutherland Termination Agreement
Exhibit B-1 – Waterfall Management Agreement
Exhibit B-2 – Waterfall Side Letter
Exhibit C – Director Resignation Letter
Exhibit D – Surviving Entity Certificate of Formation
Exhibit E – Surviving Entity Operating Agreement
Exhibit F – Surviving Partnership Agreement
Exhibit G – Proposed Book Value Schedule (Company)
Exhibit H – Proposed Book Value Schedule (Sutherland)
Exhibit I – Calculation Principles
Exhibit J – Tender Offer Price

Exhibit K – Tender Offer Conditions

DISCLOSURE LETTERS

Company Disclosure Letter
Sutherland Disclosure Letter

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER , dated as of April 6, 2016 (this “ Agreement ”), is among ZAIS FINANCIAL CORP., a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes (“ Company ”), ZAIS Financial Partners, L.P., a Delaware limited partnership and the operating partnership of Company (“ Company Operating Partnership ”), ZAIS MERGER SUB, LLC, a Delaware limited liability company and a wholly owned subsidiary of Company (“ Merger Sub ”), SUTHERLAND ASSET MANAGEMENT CORPORATION, a Maryland corporation that has elected to be treated as a real estate investment trust for federal income tax purposes (“ Sutherland ”), and SUTHERLAND PARTNERS, L.P., a Delaware limited partnership (“ Sutherland Operating Partnership ”). Each of Company, Company Operating Partnership, Merger Sub, Sutherland and Sutherland Operating Partnership is sometimes referred to herein as a “ Party ” and collectively as the “ Parties .” Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in Article 1 .

WHEREAS, the Parties wish to effect a business combination in which (i) Sutherland will be merged with and into Merger Sub (the “ Sutherland Merger ”), with Merger Sub being the surviving company, and each share of common stock, $0.01 par value per share (the “ Sutherland Common Stock ”), of Sutherland issued and outstanding immediately prior to the Sutherland Merger Effective Time (as defined herein) will be converted into the right to receive the Sutherland Merger Consideration (as defined herein), upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Maryland General Corporation Law (the “ MGCL ”) and the Delaware Limited Liability Company Act (“ DLLCA ”); and (ii) Sutherland Operating Partnership will be merged with Company Operating Partnership (the “ Partnership Merger ” and together with the Sutherland Merger, the “ Mergers ”), with Company Operating Partnership being the surviving entity, and each Sutherland OP Unit (defined below) issued and outstanding immediately prior to the Partnership Merger Effective Time (as defined herein) will be converted into the right to receive the Partnership Merger Consideration, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Delaware Revised Uniform Limited Partnership Act (the “ DRULPA ”);

WHEREAS, the Board of Directors of Sutherland (the “ Sutherland Board ”) has (a) determined that this Agreement, the Sutherland Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of Sutherland and its stockholders, (b) authorized and approved this Agreement, the Sutherland Merger and the other transactions contemplated by this Agreement, (c) directed that the Sutherland Merger and this Agreement be submitted for consideration at the Sutherland Stockholders Meeting and (d) recommended the approval of this Agreement by Sutherland stockholders;

WHEREAS, Sutherland, as the sole general partner of Sutherland Operating Partnership, has approved this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement and determined that this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement are advisable, and Sutherland has determined that the Partnership Merger and the other transactions contemplated by this Agreement are in the best interests of the holders of Sutherland OP Units;

WHEREAS, the Board of Directors of Company (the “ Company Board ”) has (a) determined that this Agreement, the Sutherland Merger and the other transactions contemplated by this Agreement are advisable and in the best interests of Company and its stockholders, (b) authorized and approved this Agreement, the Sutherland Merger and the other transactions contemplated by this Agreement, (c) directed that the issuance of Company Common Stock in the Sutherland Merger be submitted for consideration at the Company Stockholders Meeting and (d) recommended the approval of the issuance of Company Common Stock in the Sutherland Merger by Company stockholders;

WHEREAS, Company, in its capacity as the sole member of Merger Sub, has taken all actions required for the execution of this Agreement by Merger Sub and to adopt and approve this Agreement and to approve the consummation by Merger Sub of the Sutherland Merger and the other transactions contemplated by this Agreement;

WHEREAS, Company, as the sole general partner of Company Operating Partnership, has approved this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement and determined that this Agreement, the Partnership Merger and the other transactions contemplated by this Agreement are advisable, and Company has determined that the Partnership Merger and the other transactions contemplated by this Agreement are in the best interests of the holders of Company OP Units;

WHEREAS, for U.S. federal income tax purposes, it is intended that the Sutherland Merger shall qualify as a “reorganization” under, and within the meaning of, Section 368(a) of the Code, and this Agreement is intended to be and is adopted as a “plan of reorganization” for the Sutherland Merger for purposes of Sections 354 and 361 of the Code;

WHEREAS, concurrently with the execution and delivery of this Agreement, Company and Advisor have entered into the Termination Agreement attached as Exhibit A-1 (the “ Company Termination Agreement ”), which shall be effective at the Merger Effective Time and provides the terms of the termination of the Company Advisory Agreement and payment of the Advisor Termination Payment;

WHEREAS, concurrently with the execution and delivery of this Agreement, Sutherland and Waterfall have entered into the Termination Agreement attached as Exhibit A-2 , which shall be effective at the Merger Effective Time and provides the terms of the termination of the Sutherland Management Agreement;

WHEREAS, concurrently with the execution and delivery of this Agreement, Company and Waterfall have entered into the Waterfall Management Agreement and the Waterfall Side Letter, each of which shall be effective at the Merger Effective Time and providing for the terms of the management by Waterfall of the Company;

WHEREAS, concurrently with the execution and delivery of this Agreement, Company has caused to be delivered to Sutherland a letter of resignation in the form attached as Exhibit C executed by each of the directors of Company, Company Operating Partnership and each Wholly Owned Company Subsidiary as set forth in Section 1.1(a) of the Company Disclosure Letter, such resignations to be effective as of the applicable Merger Effective Time; and

WHEREAS, each of the Parties desire to make certain representations, warranties, covenants and agreements in connection with the Mergers, and to prescribe various conditions to the Mergers.

NOW THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

Article 1

DEFINITIONS

Section 1.1            Definitions .

(a)          For purposes of this Agreement :

“ Acceptable Confidentiality Agreement ” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to Company or Sutherland, as applicable, than those contained in the Confidentiality Agreement.

“ Accepted Servicing Practices ” with respect to any Mortgage Loan, mean servicing practices and procedures (including collection procedures) that are in all material respects legal, proper and customary in the mortgage servicing business in accordance with (i) the practices and procedures of prudent mortgage banking institutions that service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located, (ii) Applicable Requirements, (iii) the terms of the Mortgage Note, the Mortgage and any other Mortgage Loan Document, (iv) any applicable forbearance plan or bankruptcy plan, (v) the Guides and (vi) servicing practices that Company or Sutherland, as applicable, customarily employs and exercises in servicing and administering mortgage loans of the same type as the Mortgage Loan for its own account (to the extent not conflicting with clauses (i) through (v) in this definition).

“ Action ” means any claim, action, cause of action, suit, litigation, proceeding, arbitration, mediation, interference, audit, assessment, hearing, or other legal proceeding (whether sounding in contract, tort or otherwise, whether civil or criminal and whether brought, conducted, tried or heard by or before any Governmental Authority).

“ Advisor ” means ZAIS REIT Management, LLC, a Delaware limited liability company and the investment advisor to Company and Company Operating Partnership.

“ Advisor Termination Payment ” means the payment by Company to the Advisor of $8,000,000, as contemplated by the Company Termination Agreement.

“ Affiliate ” of a specified Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person.

“ Agency ” means each of Fannie Mae, Farmer Mac, FHA, Freddie Mac, GNMA, HUD, RHS, USDA, VA and SBA.

“ Agency Mortgage Loan ” means any Mortgage Loan sold to, guaranteed or insured by, and/or pooled by any Agency to secure or otherwise support any mortgage pass-through security, collateralized mortgage obligation, real estate mortgage investment conduit or other security issued or guaranteed by such Agency.

“ Agency Serviced Loan ” means any Agency Mortgage Loan that is Serviced by (i) Company or any Company Subsidiary or (ii) Sutherland or any Sutherland Subsidiary, as applicable.

“ Anti-Corruption Laws ” means (i) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and (ii) any anti-bribery, anti-corruption or similar applicable Law of any other jurisdiction.

“ Applicable Requirements ” means, as of the time of reference and as applicable, (i) all applicable Laws relating to the origination (including the taking, processing and underwriting of the relevant Mortgage Loan application and the closing and/or funding of the relevant Mortgage Loan), sale, pooling, servicing, subservicing or enforcement of, or filing of claims in connection with, any Mortgage Loan or Servicing Rights at the relevant time, (ii) all of the terms of the Mortgage Note, the Mortgage and any other Mortgage Loan Documents, with respect to each Mortgage Loan, (iii) all requirements set forth in the Servicing Agreements, (iv) to the extent applicable, any judicial and administrative judgments, orders, remediation plans, stipulations, awards, writs and injunctions applicable to any Mortgage Loan or Servicing Right, and (v) all applicable legal and contractual obligations, including the Guides and any rules, regulations, guidelines, underwriting standards, handbooks and other binding requirements of any Agency, to or with any insurer, Investor, or Governmental Authority applicable to any Mortgage Loan or Servicing Rights.

“ Book-Entry Share ” means, with respect to any Party, a book-entry share registered in the transfer books of such Party.

“ Business Day ” means any day other than a Saturday, Sunday or any day on which banks located in New York, New York are authorized or required to be closed.

“ Calculating Party ” means (i) Company, with respect to the Company Adjusted Book Value Per Share, and (ii) Sutherland, with respect to the Sutherland Adjusted Book Value Per Share.

“ Calculation Principles ” means the principles set forth on Exhibit I .

“ CFPB ” means the Consumer Financial Protection Bureau.

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

“ Collateral File ” means, (i) with respect to each Agency Mortgage Loan, that file containing the Mortgage Loan Documents or, as permitted by Applicable Requirements, copies thereof, required under the Applicable Requirements to be held by the applicable Custodian; (ii) with respect to any other Mortgage Loan, that file containing the Mortgage Loan Documents or, as permitted by Applicable Requirements, copies thereof, that are both required pursuant to Applicable Requirements to be held by the applicable Custodian and are necessary to service the Mortgage Loan in accordance with the Applicable Requirements; and (iii) with respect to any Agency Mortgage Loan or other Mortgage Loan, all other documents, reports, credit and servicing files, billing statements, insurance certificates and material written notices exclusively relating to such Mortgage Loan.

“ Company Adjusted Book Value Per Share ” means, as of the Determination Date, (i) the result of (A) Company’s total consolidated stockholders’ equity, minus (B) $15,000,000, divided by (ii) the number of shares of Company Common Stock issued and outstanding (including any shares of Company Common Stock issuable upon the redemption of outstanding Company OP Units or upon conversion or exchange of any outstanding securities that are convertible into or exchangeable for shares of Company Common Stock), in each case as determined in accordance with GAAP applied in a manner consistent with the principles, policies and methodologies used in the preparation of Company’s audited financial statements, as modified by the Calculation Principles and after giving pro forma effect to (i) any dividends or other distributions on shares of Company Common Stock or Company OP Units that are declared or are anticipated to be declared for which the record date is or will be prior to the Sutherland Merger Effective Time, and (ii) to the extent the Permitted Loan Sale is not consummated prior to the Determination Date, the completion of the Permitted Loan Sale and application of the net proceeds, estimated in good faith, to be received in connection with the Permitted Loan Sale. An example calculation of the Company Adjusted Book Value Per Share and the associated Proposed Book Value Schedule as of December 31, 2015, is set forth on Exhibit G .

“ Company Advisory Agreement ” means the Third Amended and Restated Investment Advisory Agreement, dated as of August 11, 2014, by and among Company, Company Operating Partnership, ZAIS Asset I, LLC, ZAIS Asset II, LLC, ZAIS Asset III, LLC, ZAIS Asset IV, LLC, ZFC Funding, Inc., ZFC Trust, ZFC Trust TRS I, LLC and the Advisor.

“ Company Bylaws ” means the Bylaws of Company as amended and in effect on the date hereof.

“ Company Charter ” means the Articles of Amendment and Restatement of Company dated August 3, 2011, as amended or supplemented and in effect on the date hereof.

“ Company Common Stock ” means the common stock, par value $0.0001 per share, of Company.

“ Company Governing Documents ” means the Company Bylaws, the Company Charter, the certificate of limited partnership of Company Operating Partnership, and the Company Partnership Agreement.

“ Company Loan ” means any Mortgage Loan during such periods of time as Company or a Company Subsidiary owned or Serviced such Mortgage Loan. For the avoidance of doubt, any Mortgage Loan that was sold by Company or any Company Subsidiary on a “servicing released” basis shall be a Company Loan for purposes of such sale and for all periods preceding such sale during which Company or such Company Subsidiary owned or Serviced such Mortgage Loans, but shall not be a Company Loan for periods following such sale during which Company or the applicable Company Subsidiary did not Service such Mortgage Loan.

“ Company Material Adverse Effect ” means any event, circumstance, change, effect, development, condition or occurrence that, individually or in the aggregate, (i) would have a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Company and the Company Subsidiaries, taken as a whole, or (ii) would prevent or materially impair the ability of Company Parties to consummate the Mergers before the Outside Date; provided , that, for purposes of the foregoing clause (i), “ Company Material Adverse Effect ” shall not include any event, circumstance, change, effect, development, condition or occurrence to the extent arising out of or resulting from (A) any failure of Company to meet any projections or forecasts or any estimates of earnings, revenues or other metrics for any period ( provided , that any event, circumstance, change, effect, development, condition or occurrence giving rise to such failure may be taken into account in determining whether there has been a Company Material Adverse Effect), (B) any changes that affect the residential mortgage loan industry generally, (C) any changes in the United States or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (D) any changes in the legal, regulatory or political conditions in the United States or in any other country or region of the world, (E) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage occurring after the date hereof, (F) the execution and delivery of this Agreement, or the public announcement of the Mergers or the other transactions contemplated by this Agreement, (G) the taking of any action expressly required by this Agreement, or the taking of any action at the written request or with the prior written consent of Sutherland, (H) earthquakes, hurricanes, floods or other natural disasters, (I) changes in Law or GAAP (or the interpretation thereof), or (J) any Specified Action or Action made or initiated by any holder of Company Common Stock, including any derivative claims, arising out of or relating to this Agreement or the transactions contemplated by this Agreement, which in the case of each of clauses (B), (C), (D), (E) and (I) do not disproportionately affect Company and the Company Subsidiaries, taken as a whole, relative to others in the residential mortgage loan industry in the United States, and in the case of clause (H), do not disproportionately affect Company and the Company Subsidiaries, taken as a whole, relative to others in the residential mortgage loan industry in the geographic regions in which Company and the Company Subsidiaries operate.

“ Company OP Units ” means the units of limited partnership interests in Company Operating Partnership.

“ Company Parties ” means Company, Merger Sub and Company Operating Partnership.

“ Company Partnership Agreement ” means the Agreement of Limited Partnership, dated as of July 29, 2011, of the Company Operating Partnership, as amended through the date hereof.

“ Company Proxy Statement ” means the proxy statement in preliminary and definitive form relating to the Company Stockholders Meeting, together with any amendments or supplements thereto.

“ Company Stockholders Meeting ” means the meeting of the holders of shares of Company Common Stock for the purpose of seeking the Company Stockholder Approval, including any postponement or adjournment thereof.

“ Company Subsidiary ” means (a) any corporation of which more than fifty percent (50%) of the outstanding voting securities is, directly or indirectly, owned by Company, and (b) any partnership, limited liability company, joint venture or other entity of which more than fifty percent (50%) of the total equity interest is, directly or indirectly, owned by Company or of which Company or any Company Subsidiary is a general partner, manager, managing member or the equivalent, including the Company Operating Partnership.

“ Conduit ” means ZFC Funding, Inc.

“ Confidentiality Agreement ” means the Confidentiality Agreement dated as of October 14, 2015, between Waterfall and Company.

“ Contract ” means any written or oral contract, agreement, indenture, note, bond, instrument, lease, conditional sales contract, mortgage, license, guaranty, binding commitment or other agreement.

“ Custodian ” means, with respect to any Mortgage Loans or Servicing Agreements, each applicable document custodian holding the related Collateral Files for Company, a Company Subsidiary, Sutherland, a Sutherland Subsidiary or the Investor, as applicable.

“ Determination Date ” means the last day of the month immediately preceding the month in which the conditions set forth in Article 8 are reasonably expected to be satisfied (other than the conditions set forth in Section 8.1(b) and Section 8.1(f) and those conditions that by their nature are to be satisfied or waived at the Closing), or such other date as may be mutually agreed by the Parties in their respective sole discretions.

“ Environmental Law ” means any Law (including common law) relating to the pollution or protection of the environment (including air, surface water, groundwater, land surface or subsurface land), or human health or safety (as such matters relate to Hazardous Substances), including Laws relating to the use, handling, presence, transportation, treatment, storage, disposal, release or discharge of Hazardous Substances.

“ Environmental Permit ” means any permit, approval, license or other authorization required under any applicable Environmental Law.

“ Equity Incentive Plan ” means Company’s 2012 Equity Incentive Plan.

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

“ ERISA Affiliate ” means, with respect to an entity (the “ Referenced Entity ”), any other entity, which, together with the Referenced Entity, would be treated as a single employer under Code Section 414 or ERISA Section 4001.

“ Exchange Act ” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Exchange Ratio ” means a quotient (rounded to the nearest one ten-thousandth) determined by dividing (i) the Sutherland Adjusted Book Value Per Share by (ii) the Company Adjusted Book Value Per Share, in each case as determined in accordance with Section 3.2 and as such number may be adjusted in accordance with Section 3.1(c) .

“ Exchangeable Notes ” means the 8.0% exchangeable senior notes due 2016 issued by Company Operating Partnership.

“ Expenses ” means all expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party and its Affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement and the other agreements and documents contemplated hereby, the preparation, printing, filing and mailing of the Proxy Statements, the preparation, printing and filing of the Form S-4 and all SEC and other regulatory filing fees incurred in connection with the Company Proxy Statement, the solicitation of stockholder approval, engaging the services of the Exchange Agent, obtaining any third party consents, making any other filings with the SEC and all other matters related to the closing of the Mergers and the other transactions contemplated by this Agreement.

“ Fannie Mae ” means the Federal National Mortgage Corporation.

“ Farmer Mac ” means the Federal Agricultural Mortgage Corporation.

“ FHA ” means the United States Federal Housing Administration.

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

“ Fundamental Representations ” means the representations and warranties contained in Section 4.1 (Organization and Qualification; Subsidiaries); Section 4.2 (Authority); Section 4.3 (Approval Required); Section 4.5 (Capital Structure); Section 4.6(f) (Investment Company Act); Section 5.1 (Organization and Qualification; Subsidiaries); Section 5.2 (Authority); Section 5.3 (Approval Required); Section 5.5 (Capital Structure); and Section 5.6(e) (Investment Company Act).

“ GAAP ” means the United States generally accepted accounting principles.

“ GMFS ” means GMFS LLC, a Wholly Owned Company Subsidiary.

“ GMFS Sale ” means the sale of all the issued and outstanding membership interests of GMFS or its parent, ZFC Honeybee TRS, LLC, by Company, to management of GMFS and other investors or to another buyer or buyers.

“ GNMA ” means the Government National Mortgage Association.

“ Governmental Authority ” means the United States (federal, state or local) government or any foreign government, or any other governmental or quasi-governmental regulatory, judicial or administrative authority, instrumentality, board, bureau, agency, commission, self-regulatory organization, arbitration panel or similar entity.

“ Guides ” means, as of the time of reference, (i) the handbooks of HUD and the VA, (ii) the Fannie Mae Selling and Servicing Guides, (iii) the Freddie Mac Sellers’ and Servicers’ Guides, (iv) the GNMA Mortgage Backed Securities Guides, (v) the SBA 7(a) loan program guide and (vi) any other “Guides” of any Agency referenced in any Contract between Company or any Company Subsidiary, or Sutherland or any Sutherland Subsidiary, as applicable, and such Agency.

“ Hazardous Substances ” means (i) those substances listed in, defined in or regulated under any Environmental Law, including the following federal statutes and their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act and the Clean Air Act; (ii) petroleum and petroleum products, including crude oil and any fractions thereof; and (iii) polychlorinated biphenyls, mold, methane, asbestos and radon.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“ HUD ” means the United States Department of Housing and Urban Development.

“ Indebtedness ” means, with respect to any Person and without duplication, (i) the principal of and premium (if any) of all indebtedness, notes payable, accrued interest payable or other obligations for borrowed money, whether secured or unsecured, (ii) all obligations under conditional sale or other title retention agreements, or incurred as financing, in either case with respect to property acquired by such Person, (iii) all obligations issued, undertaken or assumed as the deferred purchase price for any property or assets, (iv) all obligations under capital leases, (v) all obligations in respect of bankers acceptances or letters of credit, (vi) all obligations under interest rate cap, swap, collar or similar transaction or currency hedging transactions (valued at the termination value thereof), (vii) any guarantee of any of the foregoing, whether or not evidenced by a note, mortgage, bond, indenture or similar instrument and (viii) any agreement to provide any of the foregoing.

“ Intellectual Property ” means all United States and foreign (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof, (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, Internet domain names, design rights and other source identifiers, together with the goodwill symbolized by any of the foregoing, (iii) registered and unregistered copyrights and copyrightable works, (iv) confidential and proprietary information, including trade secrets, know-how, ideas, formulae, models, algorithms and methodologies, (v) all rights in the foregoing and in other similar intangible assets, and (vi) all applications and registrations for the foregoing.

“ Investment Company Act ” means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.

“ Investor ” means, as applicable, any Person (including an Agency) having a legal or beneficial interest in a Mortgage Loan or a security backed by or representing an interest in a Mortgage Loan, or any Person with authority to act for and on behalf of any such Person (or Agency), such as a trustee.

“ IRS ” means the United States Internal Revenue Service or any successor agency.

“ Knowledge ” means (i) with respect to any Company Party, the actual knowledge, after reasonable investigation, of the persons named in Schedule A to the Company Disclosure Letter and (ii) with respect to any Sutherland Party, the actual knowledge, after reasonable investigation, of the persons named in Schedule A to the Sutherland Disclosure Letter.

“ Law ” means any and all domestic (federal, state or local) or foreign laws, rules, regulations and Orders promulgated by any Governmental Authority.

“ Lien ” means with respect to any asset (including any security), any mortgage, deed of trust, claim, condition, covenant, lien, pledge, charge, security interest, preferential arrangement, option or other third party right (including right of first refusal or first offer), restriction, right of way, easement, or title defect or encumbrance of any kind in respect of such asset, including any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of ownership; other than transfer restrictions arising under applicable securities Laws.

“ Loan Purchase Agreement ” means, with respect to any Mortgage Loan, any Contract (including all applicable rules, regulations, procedures, manuals, guidelines and Investor requirements incorporated therein) governing the acquisition (other than by way of origination) or purchase of such Mortgage Loan by Company or any Company Subsidiary, or Sutherland or any Sutherland Subsidiary, as applicable.

“ Loan Sale Agreement ” means, with respect to any Mortgage Loan, any Contract (including all applicable rules, regulations, procedures, manuals, guidelines and Investor requirements incorporated therein) governing the origination, underwriting, sale, pooling and/or reconstituting of such Mortgage Loan by Company or any Company Subsidiary, or Sutherland or any Sutherland Subsidiary, as applicable.

“ Material Contract ” means any Company Material Contract or any Sutherland Material Contract, as applicable.

“ Merger Consideration ” means the Sutherland Merger Consideration and the Partnership Merger Consideration.

“ Merger Sub Governing Documents ” means the certificate of formation and limited liability company operating agreement of Merger Sub, as in effect on the date hereof.

“ Mortgage ” means the mortgage, mortgage deed, deed of trust, security agreement, assignment or other instrument to grant, perfect and continue a Lien upon real property securing the Mortgage Note and related to a Mortgage Loan; except that, with respect to real property located in jurisdictions in which the use of leasehold estates is an accepted practice, the mortgage, deed of trust or other instrument securing the Mortgage Note may secure and create a Lien upon a leasehold estate of the Mortgagor, as the case may be, including any riders, addenda, assumption agreements or modifications relating thereto.

“ Mortgage Company Investor ” means (i) in the case of Company, ZFC Funding, Inc. and ZFC Trust, and (ii) in the case of Sutherland, Sutherland Asset I, LLC.

“ Mortgage Company Subsidiary ” means (i) in the case of Company, GMFS, and (ii) in the case of Sutherland, ReadyCap Commercial, LLC and ReadyCap Lending, LLC.

“ Mortgage Loan ” means a mortgage loan originated or purchased by (i) Company or any of the Company Subsidiaries or (ii) Sutherland or any of the Sutherland Subsidiaries, as applicable.

“ Mortgage Loan Documents ” means, with respect to each Mortgage Loan, (i) the original Mortgage Loan documents held by any Custodian, including the Mortgage and the Mortgage Note (or, if such document is missing, to the extent permitted under the Applicable Requirements, an equivalent or replacement document, such as a lost note affidavit), and if applicable, cooperative mortgage loan related documents and a power of attorney, a consolidation, extension, assumption and modification agreement, or other modification documents, (ii) all documents required by an Investor to be held by a Custodian under the Applicable Requirements, and (iii) riders (including, if applicable, arbitration riders and home equity credit line revolving loan agreement riders), disclosures (including, if applicable, truth-in-lending disclosures and insurance disclosures), notices (including, if applicable, notes of right to cancel), HUD1 settlement statements (if any), good faith estimates (if any), revolving loan vouchers (if any) or other agreements and documents exclusively relating to such Mortgage Loan, and any amendment or supplements thereto or modifications thereof.

“ Mortgage Note ” means, with respect to any Mortgage Loan, the note or other evidence of indebtedness of the Mortgagor thereunder, including, if applicable, allonges and lost note affidavits, together with any assignment, reinstatement, extension, endorsement or modification thereof.

“ Mortgaged Property ” means any real or other property permitted by Applicable Requirements securing repayment of a related Mortgage Note, consisting of a fee simple interest in a single parcel of real property, improved by a residential or commercial dwelling, or other property permitted by Applicable Requirements.

“ Mortgagor ” means an obligor or co-signer under a Mortgage Loan and his, her or its successors in title to the Mortgaged Property.

“ NYSE ” means the New York Stock Exchange.

“ Order ” means a judgment, injunction, order or decree of any Governmental Authority.

“ Permitted Liens ” means any of the following: (i) Liens for Taxes or governmental assessments, charges or claims of payment not yet due, being contested in good faith or for which adequate accruals or reserves have been established; (ii) Liens that are carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business; (iii) with respect to Company or Sutherland, Liens created by or arising under the Warehouse Facilities of such Party (iv) with respect to any real property, Liens that are zoning regulations, entitlements or other land use or environmental regulations by any Governmental Authority; (v) with respect to Company, Liens that are disclosed on Section 1.1(b) of the Company Disclosure Letter, and with respect Sutherland, Liens that are disclosed on Section 1.1 (a) of the Sutherland Disclosure Letter; (vi) with respect to Company, Liens that are disclosed on the consolidated balance sheet of Company dated December 31, 2015, or notes thereto (or securing liabilities reflected on such balance sheet), and with respect to Sutherland, Liens that are disclosed on the consolidated balance sheet of Sutherland dated December 31, 2015, or notes thereto (or securing liabilities reflected on such balance sheet); (vii) with respect to Company or Sutherland, arising pursuant to any Material Contracts of such Party; (viii) with respect to any real property of Company or Sutherland, Liens that are recorded in a public record or disclosed on existing title policies made available to the other Party prior to the date hereof; or (ix) with respect to Company or Sutherland, Liens that were incurred in the ordinary course of business since December 31, 2015 and that does not materially interfere with the use, operation or transfer of, or any of the benefits of ownership of, the property of such Party and its subsidiaries, taken as a whole.

“ Permitted Loan Sale ” means the sale of all or substantially all of the whole loan portfolio of Company and Company Subsidiaries for cash to one or more buyers on terms and conditions substantially consistent with those set forth on Section 1.1(c) of the Company Disclosure Letter or on such other terms and conditions that when compared to the terms and conditions set forth on Section 1.1(c) of the Company Disclosure Letter are not materially adverse to Sutherland, Company or the Company Subsidiaries (after giving effect to the transactions contemplated by this Agreement); provided , that such sale shall not constitute a sale of all or substantially all of the assets of Company and Company Subsidiaries, on a consolidated basis.

“ Permitted Sales ” means the Permitted Securities Sale and the Permitted Loan Sale.

“ Permitted Securities Sale ” means the sale of the mortgage securities of Company and Company Subsidiaries for cash.

“ Person ” or “ person ” means an individual, corporation, partnership, limited partnership, limited liability company, group (including a “person” as defined in Section 13(d)(3) of the Exchange Act), trust, association or other entity or organization (including any Governmental Authority or a political subdivision, agency or instrumentality of a Governmental Authority).

“ Program Lender ” means each of Fannie Mae, Freddie Mac, FHA, GNMA, USDA and SBA (as applicable) that holds, controls, owns or guarantees the performance of the applicable Serviced Loans (and, for the avoidance of doubt, excluding any Person that may own, control, hold or guarantee the performance of such Serviced Loans in a manner similar to that currently provided by Company or any Company Subsidiary or Sutherland or any Sutherland Subsidiary, as applicable, and excluding any borrower or any guarantor of any borrower under such Serviced Loans).

“ Proposed Book Value Schedule ” means a schedule setting forth in reasonable detail the good faith calculation of (i) Company, with respect to the Company Adjusted Book Value Per Share, or (ii) Sutherland, with respect to the Sutherland Adjusted Book Value Per Share.

“ Proxy Statements ” means the Company Proxy Statement and the Sutherland Proxy Statement.

“ Receiving Party ” means (i) Sutherland, with respect to the Company Adjusted Book Value Per Share, and (ii) Company, with respect to the Sutherland Adjusted Book Value Per Share.

“ Representative ” means, with respect to any Person, such Person’s directors, officers, employees, advisors (including attorneys, accountants, consultants, investment bankers, and financial advisors), agents and other representatives.

“ RHS ” means the Rural Housing Service.

“ SBA ” means the U.S. Small Business Administration.

“ SEC ” means the U.S. Securities and Exchange Commission (including the staff thereof).

“ Securities Act ” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Service ” and “ Servicing ” mean the responsibilities with respect to servicing the Mortgage Loans under the Applicable Requirements, whether performed as a servicer (including master servicer), subservicer or interim servicer.

“ Serviced Loans ” means Mortgage Loans that a Mortgage Company Subsidiary is Servicing under Servicing Agreements.

“ Servicing Agreement ” means any contract, and all applicable rules, regulations, procedures, manuals and guidelines incorporated therein, defining the rights and obligations of the Investor and servicer, with respect to Servicing Rights, consisting of, as applicable, any contracts and other binding documents, including the Guides (as each such contract and other document has been amended from time to time), and including waivers approved by an Investor, under which Company or any Company Subsidiary, or Sutherland or any Sutherland Subsidiary, as applicable, is obligated to Service Mortgage Loans relating to the Servicing Rights.

“ Servicing Rights ” means (i) all rights to administer and service the Mortgage Loans; (ii) any payments or monies payable or received for servicing the Mortgage Loans; (iii) any late fees, assumption fees, penalties or similar payments with respect to the Mortgage Loans; (iv) all Contracts creating, defining or evidencing any such Servicing Rights and all rights of Company or any Company Subsidiary or Sutherland or any Sutherland Subsidiary, as applicable, thereunder, including any clean-up calls and termination options; (v) the right to collect and hold escrow payments or other similar payments with respect to the Mortgage Loans and any amounts actually collected with respect thereto; (vi) all accounts and other rights to payments related to any of the property described in this paragraph; (vii) possession and use of any and all Collateral Files pertaining to the Mortgage Loans or pertaining to the past, present, or prospective servicing of the Mortgage Loans; and (viii) all rights, powers and privileges incident to any of the foregoing.

“ Specified Action ” means the Actions listed on Section 1.1(d) of the Company Disclosure Letter or any other Action substantially related thereto.

“ Sutherland Adjusted Book Value Per Share ” means, as of the Determination Date, the result of (i) Sutherland’s total consolidated stockholders’ equity, divided by (ii) the number of shares of Sutherland Common Stock issued and outstanding (including any shares of Sutherland Common Stock issuable upon the redemption of outstanding Sutherland OP Units or upon conversion or exchange of any outstanding securities that are convertible into or exchangeable for shares of Sutherland Common Stock), in each case as determined in accordance with GAAP applied in a manner consistent with the principles, policies and methodologies used in the preparation of Sutherland’s audited financial statements, as modified by the Calculation Principles and after giving pro forma effect to (i) any dividends or other distributions on shares of Sutherland Common Stock or Sutherland OP Units that are declared or are anticipated to be declared for which the record date is or will be prior to the Sutherland Merger Effective Time, and (ii) the redemption of the outstanding Sutherland Preferred Stock. An example calculation of the Sutherland Adjusted Book Value Per Share and the associated Proposed Book Value Per Share as of December 31, 2015, is set forth on Exhibit H .

“ Sutherland Bylaws ” means the Bylaws of Sutherland as amended and in effect on the date hereof.

“ Sutherland Charter ” means the Articles of Amendment and Restatement of Sutherland dated November 25, 2013, as amended or supplemented and in effect on the date hereof.

“ Sutherland Governing Documents ” means the Sutherland Bylaws, the Sutherland Charter, the certificate of limited partnership of the Sutherland Operating Partnership and the Sutherland Partnership Agreement.

“ Sutherland Loan ” means any Mortgage Loan during such periods of time as Sutherland or a Sutherland Subsidiary owned or Serviced such Mortgage Loan. For the avoidance of doubt, any Mortgage Loan that was sold by Sutherland or any Sutherland Subsidiary on a “servicing released” basis shall be a Sutherland Loan for purposes of such sale and for all periods preceding such sale during which Sutherland or such Sutherland Subsidiary owned or Serviced such Mortgage Loans, but shall not be a Sutherland Loan for periods following such sale during which Sutherland or the applicable Sutherland Subsidiary did not Service such Mortgage Loan.

“ Sutherland Management Agreement ” means the Management Agreement, dated as of November 26, 2013, by and among Sutherland, the Sutherland Operating Partnership, Sutherland Asset I, LLC, Sutherland Asset II, LLC, Sutherland OP Holdings I, Ltd., Sutherland REIT Holdings, L.P., Sutherland ERISA Holdings, Ltd., Sutherland OP Holdings II, Ltd. and Waterfall.

“ Sutherland Material Adverse Effect ” means any event, circumstance, change, effect, development, condition or occurrence that individually or in the aggregate, (i) would have a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Sutherland and the Sutherland Subsidiaries, taken as a whole, or (ii) would prevent or materially impair the ability of Sutherland Parties to consummate the Mergers before the Outside Date; provided , that, for purposes of the foregoing clause (i), “ Sutherland Material Adverse Effect ” shall not include any event, circumstance, change, effect, development, condition or occurrence to the extent arising out of or resulting from (A) any failure of Sutherland to meet any projections or forecasts or any estimates of earnings, revenues or other metrics for any period ( provided , that any event, circumstance, change, effect, development, condition or occurrence giving rise to such failure may be taken into account in determining whether there has been a Sutherland Material Adverse Effect), (B) any changes that affect the commercial mortgage loan industry generally, (C) any changes in the United States or global economy or capital, financial or securities markets generally, including changes in interest or exchange rates, (D) any changes in the legal, regulatory or political conditions in the United States or in any other country or region of the world, (E) the commencement, escalation or worsening of a war or armed hostilities or the occurrence of acts of terrorism or sabotage occurring after the date hereof, (F) the execution and delivery of this Agreement, or the public announcement of the Mergers or the other transactions contemplated by this Agreement, (G) the taking of any action expressly required by this Agreement, or the taking of any action at the written request or with the prior written consent of Company, (H) earthquakes, hurricanes, floods or other natural disasters, or (I) changes in Law or GAAP (or the interpretation thereof) which in the case of each of clauses (B), (C), (D), (E) and (I) do not disproportionately affect Sutherland and the Sutherland Subsidiaries, taken as a whole, relative to others in the commercial mortgage loan industry in the United States, and in the case of clause (H), do not disproportionately affect Sutherland and the Sutherland Subsidiaries, taken as a whole, relative to others in the commercial mortgage loan industry in the geographic regions in which Sutherland and the Sutherland Subsidiaries operate.

“ Sutherland OP Units ” means the units of limited partnership interests in the Sutherland Operating Partnership (excluding the Sutherland Special OP Unit).

“ Sutherland Parties ” means Sutherland and Sutherland Operating Partnership.

“ Sutherland Partnership Agreement ” means the Second Amended and Restated Agreement of Limited Partnership of the Sutherland Operating Partnership, dated as of November 26, 2013, as amended through the date hereof.

“ Sutherland Proxy Statement ” means the proxy statement relating to the Sutherland Stockholders Meeting, together with any amendments or supplements thereto.

“ Sutherland SEC Documents ” means all forms, documents, statements, schedules and reports filed by Sutherland under the Exchange Act or the Securities Act since December 31, 2014.

“ Sutherland Stockholder Approval ” means the affirmative vote of the holders of a majority of the outstanding shares of Sutherland Common Stock entitled to vote at the Sutherland Stockholders Meeting on the Sutherland Merger and the other transactions contemplated by this Agreement.

“ Sutherland Stockholders Meeting ” means the meeting of the holders of shares of Sutherland Common Stock exclusively for the purpose of seeking the Sutherland Stockholder Approval, including any postponement or adjournment thereof.

“ Sutherland Subsidiary ” means (a) any corporation of which more than fifty percent (50%) of the outstanding voting securities is, directly or indirectly, owned by Sutherland, and (b) any partnership, limited liability company, joint venture or other entity of which more than fifty percent (50%) of the total equity interest is, directly or indirectly, owned by Sutherland or of which Sutherland or any Sutherland Subsidiary is a general partner, manager, managing member or the equivalent.

“ Tax ” or “ Taxes ” means any federal, state, local and foreign income, gross receipts, capital gains, withholding, property, recording, stamp, transfer, sales, use, abandoned property, escheat, franchise, employment, payroll, excise, environmental and any other taxes, duties, assessments or similar governmental charges, together with penalties, interest or additions imposed with respect to such amounts.

“ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes filed or required to be filed with a Governmental Authority, including any schedule or attachment thereto, and including any amendment thereof.

“ Tender Offer ” means a cash tender offer to purchase shares of Company Common Stock having aggregate cash proceeds to holders of Company Common Stock of not more than the Tender Offer Funds, with a price per share of ninety-five percent (95%) of the Tender Offer Price , as such tender offer may be extended, amended and supplemented from time to time as permitted by this Agreement.

“ Tender Offer Funds ” means $64,331,094 of aggregate gross proceeds to stockholders of Company.

“ Tender Offer Price ” means the Company Adjusted Book Value Per Share, adjusted to reflect the items set forth on Exhibit J .

“ Termination Fee ” means an amount equal to $4,000,000.

“ USDA ” means the United States Department of Agriculture.

“ VA ” means the United States Department of Veterans Affairs.

“ Warehouse Facilities ” means (i) with respect to Company and the Company Subsidiaries, the credit facilities and repurchase agreements identified in Section 1.1(e) of the Company Disclosure Letter and (ii) with respect to Sutherland and Sutherland Subsidiaries, the credit facilities and repurchase agreements identified in Section 1.1(b) of the Sutherland Disclosure Letter.

“ Waterfall ” means Waterfall Asset Management, LLC, a Delaware limited liability company.

“ Waterfall Management Agreement ” means the Management Agreement between Company and Waterfall, substantially in the form attached hereto as Exhibit B-1 .

“ Waterfall Side Letter ” means the letter agreement between Company and Waterfall, substantially in the form attached hereto as Exhibit B-2 .

“ Wholly Owned Company Subsidiary ” means the Company Operating Partnership and any wholly owned subsidiary of Company or the Company Operating Partnership.

“ Wholly Owned Sutherland Subsidiary ” means Sutherland Operating Partnership and any wholly owned subsidiary of Sutherland or the Sutherland Operating Partnership.

“ ZFC Trust ” means ZFC Trust, a Maryland trust.

(b)          The following terms have the respective meanings set forth in the sections set forth below opposite such term:

Section 1.2            Interpretation and Rules of Construction .

In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(a)           when a reference is made in this Agreement to an Article, Section or Schedule , su ch referenc e is to an Article or Section of, or Schedule to, th is Agreement unles s otherwis e indicated;

(b)           the table of contents and headings for this Agreement are f or referen ce purposes only and do not affect in any way the meaning or interpretati on of this Agreement ;

(c)           when ever the words “ include ,” “ includes” o r “ including ” are used in t his Agreement , they are deem ed to be followed by the words “without limiting the generality of the foregoing” unless expressly provided otherwise;

(d)           “or” shall be co ns trued in the inclusive sense of “and/or”;

(e)           the words “hereof ,” “ herein” and “ hereunder ” and words of similar import, when used in this Agreement , refe r to this Agreement as a whole and not to any particular provision of this Agreement , exce pt to the extent otherwise specified;

(f)           all references herein to “$” o r dolla rs s h al l r efer to United States dollars;

(g)           no specific provision, representation or warranty sha ll limit the applicability of a more general provision, representation or warranty;

(h)           it is the intent of the Parties that ea ch repre sentation, warranty, covenant, condition and agreement conta ined in th is Agreement shall be given full, separate, and independent effect and that such provisions are cumulative;

(i)           the phrase “ordinary course of business” shall be deem ed to be followed by the words “consistent with past practice” whether or not such wor ds actually follow such phrase;

(j)           references to a Person are also to its successors and permitted assigns;

(k)           any reference in this Agreement to a date or ti me shall b e d eemed to be such date or time in the Cit y of New York, New York, U.S.A., unless otherwise specified;

(l)           all terms defined in this Agreement have the define d meanings when used in any certificate or other document made or delivered pu rsu ant hereto, unless otherwise defined therein; and

(m)           the definitions contained in this Agreement are a pplicable to the singular as well as the plural forms of such terms.

Article 2

THE MERGERS

Section 2.1            The Mergers; Other Transactions .

(a)          Upon the terms and subject to the satisfaction or waiver of the con ditions set forth in this Agreement , and in accordan ce with the MGCL and DLLCA , a t the Sut herla nd Merger Effective Time, Sutherland shal l be merged w ith and into Merger Sub , where upon the s eparate existence of Sutherland will c ease, with Merger Sub surviv ing the Sut herland Merger (the “ Surviving Entity ” ), such that fol lowing the Sutherland Merger , the Surviving E ntity will be a wholly owned subsidiary of Company. The Sut herland Merger shall have the ef fects set forth in the applicable provisions of the MGCL, the DLLCA a nd t his Agreement .

(b)          Upon t he terms and subject to the satisfaction or waiver of the con ditions set forth in this Agreement, and in accordan ce with the DRULPA, at the Pa rtners hip Merge r Effective Time, Sutherland Oper at ing Partnership shall be merged w ith and into Company Operating Partnership, with Company Op erating Partnership surviving the Par tnership Merge r (the “ Surviving P artner ship ”). The Partners hip Merge r shall have the ef fects set forth in the applicable provisions of the DRULPA and this A greemen t.

(c)          Immedi ately pri or to the Merger Effective Time, each share of S utherland Prefer red Stock outstanding at su ch time shall be redeemed by Sutherland for a redemption price of $1,000 per share p lus accrued and unpaid dividends through and including the Closing Date.

Section 2.2            Closing . The closing (the “ Closing ”) of the Mergers will take place (a) by electronic exchange of documents and signatures at 10:00 a.m., Eastern time on the third (3 ^rd ) Business Day after all the conditions set forth in Article 8 (other than those conditions that by their nature are to be satisfied or waived at the Closing, but subject to the satisfaction or valid waiver of such conditions) shall have been satisfied or validly waived by the Party entitled to the benefit of such condition (subject to applicable Law), or (b) such other place or date as may be agreed in writing by the Parties (the “ Closing Date ”).

Section 2.3            Effective Times .

(a)           Prior to the Closing, Sutherland and Company shall prepare and, on the Closing Date, Company, Sutherland and Merger Sub shall (i) cause articles of merger with respect to the Sutherland Merger to be duly executed and filed with the State Department of Assessments and Taxation of Maryland (the “ SDAT ”) in accordance with the MGCL (the “ Articles of Merger ”), (ii) cause a certificate of merger with respect to the Sutherland Merger to be duly executed and filed with the Delaware Secretary of State (the “ DE SOS ”) in accordance with the DLLCA (the “ Sutherland Certificate of Merger ”), and (iii) make any other filings, recordings or publications required to be made by Sutherland, Merger Sub or the Surviving Entity under the MGCL or DLLCA in connection with the Sutherland Merger. The Sutherland Merger shall become effective at the time set forth in the Articles of Merger and the Sutherland Certificate of Merger (such date and time, the “ Sutherland Merger Effective Time ”), it being understood and agreed that the Parties shall cause the Sutherland Merger Effective Time to occur on the Closing Date and after the Partnership Merger Effective Time. The Articles of Merger and the Sutherland Certificate of Merger shall provide that the name of the Surviving Entity shall be “Sutherland Asset Management, LLC”.

(b)           Prior to the Closing, Sutherland Operating Partnership and Company Operating Partnership shall prepare and, on the Closing Date, Company Operating Partnership and Sutherland Operating Partnership shall (i) cause a certificate of merger with respect to the Partnership Merger to be duly executed and filed with the DE SOS in accordance with the DRULPA (the “ Partnership Certificate of Merger ”) and (ii) make any other filings, recordings or publications required to be made by Company Operating Partnership, Sutherland Operating Partnership or the Surviving Partnership under the DRULPA in connection with the Partnership Merger. The Partnership Merger shall become effective at the time set forth in the Partnership Certificate of Merger (such date and time, the “ Partnership Merger Effective Time ” and together with the Sutherland Merger Effective Time, the “ Merger Effective Time ”), it being understood and agreed that the Parties shall cause the Partnership Merger Effective Time to occur on the Closing Date before the Sutherland Merger Effective Time. The Partnership Certificate of Merger shall provide that the name of the Surviving Partnership shall be “Sutherland Partners, L.P.”.

(c)           On the Closing Date, immediately prior to the Merger Effective Time, Sutherland shall effect the redemption of the Sutherland Preferred Stock as provided in Section 2.1(c) .

(d)           On the Closing Date, Company shall file an amendment to the Company Charter with the SDAT in accordance with the MGCL to effect the change of name of Company to “Sutherland Asset Management Corporation”.

Section 2.4            Organizational Documents of the Surviving Entity and the Surviving Partnership .

(a)          At the Sutherland Merger Effective Time and by virtue of the Sutherland Merger, (i) the certificate of formation of the Surviving Entity shall be substantially in the form attached hereto as Exhibit D , until thereafter amended in accordance with applicable Law and the applicable provisions of such charter, and (ii) the limited liability company operating agreement of the Surviving Entity shall be substantially in the form attached as Exhibit E , until thereafter amended in accordance with applicable Law and the applicable provisions of the Surviving Entity’s certificate of formation and limited liability company operating agreement.

(b)          At the Partnership Merger Effective Time, (i) the certificate of limited partnership of Company Operating Partnership shall be the certificate of limited partnership of the Surviving Partnership and (ii) the limited partnership agreement in the form attached as Exhibit F shall be the limited partnership agreement of the Surviving Partnership (the “ Surviving Partnership Agreement ”).

Section 2.5            Managers of the Surviving Entity . At the Sutherland Merger Effective Time, by virtue of the Merger, the number of managers of the Surviving Entity shall be two (2) and the names of the managers of the Surviving Entity shall be as designated by Sutherland prior to the Sutherland Merger and the filing of the Articles of Merger. The Surviving Entity shall have no officers at the Sutherland Merger Effective Time.

Section 2.6            Tax Treatment of Mergers .

(a)          The Parties hereby confirm, covenant and agree to treat the Sutherland Merger as a reorganization within the meaning of Section 368(a) of the Code, and that this Agreement be, and is hereby adopted as, a plan of reorganization for purposes of Section 354 and 361 of the Code. Unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code (or a similar determination under applicable state of local Law), all Parties shall file all United States federal, state and local Tax Returns in a manner consistent with the intended tax treatment of the Mergers described in this Section 2.6 , and no Party shall take a position inconsistent with such treatment.

(b)          The Parties hereby confirm, covenant and agree to treat the Partnership Merger, for all income tax purposes, as a tax-deferred exchange of former partnership interest in Company Operating Partnership for partnership interests in Sutherland Operating Partnership. Unless otherwise required by a final determination within the meaning of Section 1313(a) of the Code (or a similar determination under applicable state of local Law), all Parties shall file all United States federal, state and local Tax Returns in a manner consistent with the intended tax treatment of the Mergers described in this Section 2.6(b) , and no Party shall take a position inconsistent with such treatment.

Section 2.7            Subsequent Actions . If at any time after the Partnership Merger Effective Time the Surviving Partnership shall determine, in its sole and absolute discretion, that any actions are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Partnership its right, title or interest in, to or under any of the rights or properties of Sutherland Operating Partnership or Company Operating Partnership acquired or to be acquired by the Surviving Partnership as a result of, or in connection with, the Partnership Merger or otherwise to carry out this Agreement, then the partners and officers of the Surviving Partnership shall be authorized to take all such actions as may be necessary or desirable to vest all right, title or interest in, to or under such rights or properties in the Surviving Partnership or otherwise to carry out this Agreement.

Article 3

EFFECTS OF THE MERGERS

Section 3.1            Effects of the Mergers .

(a)           The Sutherland Merger . At the Sutherland Merger Effective Time and by virtue of the Sutherland Merger and without any further action on the part of Company, Sutherland or Merger Sub or the holders of any securities of Company, Sutherland or Merger Sub:

(i)           Each share of Sutherland Common Stock, if any, then held by Sutherland or any Wholly Owned Sutherland Subsidiary or held in Sutherland’s treasury shall automatically be retired and shall cease to exist, and no Sutherland Merger Consideration shall be paid, nor shall any other payment or right inure or be made with respect thereto in connection with or as a consequence of the Sutherland Merger;

(ii)          Each share of Sutherland Common Stock, if any, then held by Company or any Wholly Owned Company Subsidiary shall no longer be outstanding and shall automatically be retired and shall cease to exist, and no Sutherland Merger Consideration shall be paid, nor shall any other payment or right inure or be made with respect thereto in connection with or as a consequence of the Sutherland Merger;

(iii)         Except as provided in Section 3.1(a)(i) and Section 3.1(a)(ii) and subject to Section 3.1(c) and Section 3.1(e) , each share of Sutherland Common Stock outstanding immediately prior to the Sutherland Merger Effective Time will be automatically cancelled and retired and converted into the right to receive (upon the proper surrender of the certificate representing such share (“ Certificate ”) or, in the case of a Book-Entry Share, the proper surrender of such Book-Entry Share) the Exchange Ratio of validly issued, fully paid and nonassessable shares of Company Common Stock. As of the Sutherland Merger Effective Time, each holder of a Certificate or Book-Entry Share that immediately prior to the Sutherland Merger Effective Time represented shares of Sutherland Common Stock shall cease to have any rights with respect thereto other than the right to receive (A) shares of Company Common Stock to be issued in consideration therefore upon the surrender of such Certificate or Book-Entry Share and (B) any cash, without interest, to be paid in lieu of any fractional share of Company Common Stock in accordance with Section 3.1(e) (the “ Sutherland Merger Consideration ”); and

(iv)         Each membership interest of Merger Sub issued and outstanding immediately prior to the Sutherland Merger Effective Time shall remain issued and outstanding membership interests of the Surviving Entity.

(b)           The Partnership Merger . At the Partnership Merger Effective Time and by virtue of the Partnership Merger and without any further action on the part of Company Operating Partnership or Sutherland Operating Partnership or the holders of any securities of Company Operating Partnership or Sutherland Operating Partnership:

(i)           Each Sutherland OP Unit then held by Sutherland or any Wholly Owned Sutherland Subsidiary will be automatically cancelled and retired and converted into the right to receive the Exchange Ratio of validly issued, fully paid and non-assessable Company OP Units;

(ii)          Except as provided in Section 3.1(b)(i) and subject to Section 3.1(c) and Section 3.1(e), each Sutherland OP Unit outstanding immediately prior to the Partnership Merger Effective Time will be automatically cancelled and retired and converted into the right to receive (upon the proper surrender of such Sutherland OP Unit) the Exchange Ratio of validly issued, fully paid and non-assessable Company OP Units. As of the Partnership Merger Effective Time, each holder of a Sutherland OP Unit that immediately prior to the Partnership Merger Effective Time represented an equity interest in Sutherland Operating Partnership shall cease to have any rights with respect thereto other than the right to receive (A) Company OP Units to be issued in consideration therefor in the form of a Book-Entry Share and (B) any cash, without interest, to be paid in lieu of any fractional unit of Company OP Units in accordance with Section 3.1(e) (the “ Partnership Merger Consideration ”);

(iii)         The Sutherland OP Special Unit will be automatically cancelled and retired and converted into the right to receive the “Class A Special Unit” (as defined in the Surviving Partnership Agreement); and

(iv)         Each Company OP Unit outstanding immediately prior to the Partnership Merger Effective Time will remain outstanding.

(c)           Adjustment of the Exchange Ratio . Between the date of this Agreement and the applicable Merger Effective Time, if any of Sutherland, Sutherland Operating Partnership, Company or Company Operating Partnership should split, combine or otherwise reclassify the Sutherland Common Stock, the Sutherland OP Units, the Company Common Stock or the Company OP Units or makes a dividend or other distribution in shares of the Sutherland Common Stock, the Sutherland OP Units, the Company Common Stock or the Company OP Units (including any dividend or other distribution of securities convertible into Sutherland Common Stock, Sutherland OP Units, Company Common Stock or Company OP Units), or engages in a reclassification, reorganization, recapitalization or exchange or other like change, then (without limiting any other rights of the Parties hereunder), the Exchange Ratio shall be ratably adjusted to reflect fully the effect of any such change, and thereafter all references to the Exchange Ratio shall be deemed to be the Exchange Ratio as so adjusted.

(d)           Transfer Books . From and after the Sutherland Merger Effective Time, the share and/or unit transfer books of Sutherland and Sutherland Operating Partnership shall be closed, and thereafter there shall be no further registration of transfers of Sutherland Common Stock or Sutherland OP Units. From and after the Sutherland Merger Effective Time, Persons who held Sutherland Common Stock or Sutherland OP Units immediately prior to the Sutherland Merger Effective Time shall cease to have rights with respect to such shares or units, except as otherwise provided for in this Agreement or by applicable Law. On or after the Sutherland Merger Effective Time, any Certificates or Book-Entry Shares of Sutherland Common Stock or Sutherland OP Units presented to the Exchange Agent, Company, the Surviving Entity, the Surviving Partnership or the transfer agent shall be exchanged for the Merger Consideration with respect to Sutherland Common Stock or Sutherland OP Units formerly represented thereby, as applicable. At the Partnership Merger Effective Time, the unit transfer book of Surviving Partnership shall reflect the Company OP Units issued to holders of the Sutherland OP Units as part of the Partnership Merger Consideration.

(e)           No Fractional Shares . No certificates or scrip representing fractional shares of Company Common Stock or fractional units of Company OP Units shall be issued upon the surrender for exchange of Certificates or Book-Entry Shares and such fractional share or unit shall not entitle the record or beneficial owner thereof to vote or to any other rights as a stockholder of Company or limited partner of the Surviving Partnership. In lieu of receiving any such fractional share or unit, the holder shall receive cash (without interest) in an amount rounded up to the nearest whole cent, determined by multiplying (i) the per share closing price on the NYSE of Company Common Stock (as reported on the NYSE Composite Transactions Tape as such tape is reported in Bloomberg Professional Service or another recognized business publication) on the date immediately preceding the date on which the Merger Effective Time shall occur (or, if the Company Common Stock did not trade on the NYSE on such prior date, the last day of trading in Company Common Stock on the NYSE prior to the Merger Effective Time) by (ii) the fraction of a share or unit to which such holder would otherwise be entitled.

Section 3.2            Determination of Exchange Ratio.

(a)          As promptly as practicable, and in any event within thirty (30) days after the Determination Date, each Calculating Party shall prepare and deliver to the Receiving Party a Proposed Book Value Schedule, together with such supporting documentation that the Receiving Party may reasonably request.

(b)          Within five (5) Business Days of the delivery of each Proposed Book Value Schedule, the Receiving Party shall notify the Calculating Party whether it accepts or disputes the accuracy of the Proposed Book Value Schedule. In the event that the Receiving Party disputes the accuracy of the Proposed Book Value Schedule, the Receiving Party shall notify the Calculating Party in reasonable detail of those items and amounts as to which the Receiving Party disagrees and setting forth the Receiving Party’s calculation of such disputed amounts (a “ Dispute Notice ”), and the Receiving Party shall be deemed to have agreed with all other items and amounts contained in the Proposed Book Value Schedule. In the event that the Receiving Party notifies the Calculating Party that it accepts the Proposed Book Value Schedule, or does not deliver a Dispute Notice to the Calculating Party, during such five Business Day period, the Receiving Party shall be considered to have accepted the accuracy of the Proposed Book Value Schedule, and the calculations of the Company Adjusted Book Value Per Share or Sutherland Adjusted Book Value Per Share set forth therein shall be final, conclusive and binding upon the Parties.

(c)          If a Dispute Notice shall be timely delivered by the Receiving Party pursuant to Section 3.2(b) above, then the Calculating Party and the Receiving Party shall forthwith jointly request that Ernst & Young (“ E&Y ”) and, if requested by the Receiving Party, solely with respect to any internal financial model used by the Calculating Party as part of the calculation of the Proposed Book Value Schedule, JPMorgan Chase & Co. (“ JPM ” and together with E&Y, a “ Neutral ”), make a binding determination only as to the items set forth in the Dispute Notice in accordance with the terms of this Agreement. Each Neutral will, under the terms of its engagement, be required to render its written decision with respect to such disputed items and amounts within four (4) Business Days from the date of referral. Each Neutral shall consider only those items or amounts in the Proposed Book Value Schedule as to which the Receiving Party and the Calculating Party are in disagreement. Each Neutral shall deliver to the Receiving Party and the Calculating Party a written report setting forth its adjustments, if any, to the Proposed Book Value Schedule based on such Neutral’s determination with respect to the disputed items and amounts in accordance with this Agreement and the Calculation Principles and such report shall include the calculations supporting such adjustments; provided , that for each item as to which the Calculating Party or the Receiving Party are in disagreement, such Neutral shall assign a value for each such item no greater than the higher amount, and no less than the lower amount, calculated or proposed by the Calculating Party or the Receiving Party with respect to such item, as the case may be. Such report shall be final, conclusive and binding on the Parties, and neither any Party nor any of its Affiliates or Representatives will seek recourse to any courts, other tribunals or otherwise, other than to enforce the determination of each Neutral. The fees and expenses of each Neutral shall be shared equally by the Parties.

(d)          Subject to Section 7.4 , as soon as practicable (but not more than two (2) Business Days) following the final determination of the Company Adjusted Book Value Per Share, the Sutherland Adjusted Book Value Per Share and the Exchange Ratio, Company and Sutherland shall make a joint public statement to disclose the Exchange Ratio (the “ Exchange Ratio Announcement ”).

Section 3.3            Exchange Procedures; Exchange Agent; Distributions with Respect to Unexchanged Shares .

(a)          As soon as practicable prior to the Sutherland Merger Effective Time, Sutherland will designate a bank or trust company reasonably acceptable to Company to act as exchange agent (the “ Exchange Agent ”) for the payment and delivery of the Merger Consideration, as provided in Section 3.1(a)(iii) and Section 3.1(b)(ii) . Prior to the Sutherland Merger Effective Time, Company will enter into an exchange agent agreement with the Exchange Agent, in a form reasonably acceptable to Sutherland (the “ Exchange Agent Agreement ”), setting forth the procedures to be used in accomplishing the deliveries and other actions contemplated by this Section 3.3 .

(b)          Prior to the Merger Effective Time, Company shall deposit with the Exchange Agent for the sole benefit of the holders of shares of Sutherland Common Stock, certificates or Book-Entry shares representing shares of Company Common Stock to be issued pursuant to Section 3.1(a)(iii) in exchange for the shares of Sutherland Common Stock. After the Effective Time on the appropriate payment date, if applicable, Company shall provide or shall cause to be provided to the Exchange Agent any dividends or other distributions payable on such shares of Company Common Stock pursuant to Section 3.3(e) . Company shall make available to the Exchange Agent, for addition to the Exchange Fund, from time to time as needed, cash sufficient to pay cash in lieu of fractional shares in accordance with Section 3.1(e) . Such shares of Company Common Stock, together with any cash in lieu of fractional shares pursuant to Section 3.1(e) and dividends or distributions with respect thereto pursuant to Section 3.3 , are referred to herein as the “Exchange Fund”. Company shall cause the Exchange Agent to make, and the Exchange Agent shall make delivery of, the Merger Consideration out of the Exchange Fund in accordance with this Agreement. The Exchange Fund shall not be used for any other purpose.

(c)          As soon as reasonably practicable after the Sutherland Merger Effective Time (but in no event later than two (2) Business Days thereafter), Company shall cause the Exchange Agent to mail (and to make available for collection by hand) to each holder of record of a Certificate or Book-Entry Share representing shares of Sutherland Common Stock (A) a letter of transmittal (a “ Letter of Transmittal ”) in customary form as prepared by Company and reasonably acceptable to Sutherland (which shall specify, among other things, that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares, as applicable, shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) or transfer of any Book-Entry Shares to the Exchange Agent) and (B) instructions for use in effecting the surrender of the Certificates or the transfer of Book-Entry Shares in exchange for the Sutherland Merger Consideration into which the number of shares of Sutherland Common Stock previously represented by such Certificate or Book-Entry Share shall have been converted pursuant to this Agreement.

(d)          Upon (A) surrender of a Certificate (or affidavit of loss in lieu thereof) or transfer of any Book-Entry Share representing shares of Sutherland Common Stock to the Exchange Agent, together with a properly completed and validly executed Letter of Transmittal or (B) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of transfer of a Book-Entry Share, and such other documents as may reasonably be required by the Exchange Agent, the holder of such Certificate or Book-Entry Share representing shares of Sutherland Common Stock shall be entitled to receive in exchange therefor (i) a certificate representing the number of whole shares of Company Common Stock into which the Sutherland Common Stock represented by the surrendered Certificate or Book-Entry Share shall have been converted at the Sutherland Merger Effective Time, (ii) cash in lieu of any fractional share of Company Common Stock in accordance with Section 3.1(e) and (iii) certain dividends and distributions in accordance with Section 3.3(e) , if any, after the Exchange Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof) or “agent’s message” or other evidence, and the Certificate (or affidavit of loss in lieu thereof) so surrendered or the Book-Entry Share so transferred, as applicable, shall be forthwith cancelled. The Exchange Agent shall accept such Certificates (or affidavits of loss in lieu thereof) and Book-Entry Shares upon compliance with such reasonable terms and conditions as the Exchange Agent may impose to effect an orderly exchange thereof in accordance with customary exchange practices. Until surrendered or transferred as contemplated by this Section 3.3 , each Certificate or Book-Entry Share representing shares of Sutherland Common Stock shall be deemed, at any time after the Sutherland Merger Effective Time to represent only the right to receive, upon such surrender, the Merger Consideration as contemplated by this Article 3 . No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on the Merger Consideration payable upon the surrender of the Certificates or Book-Entry Shares.

(e)          No dividends or other distributions declared or made after the Sutherland Merger Effective Time with respect to Company Common Stock with a record date after the Sutherland Merger Effective Time shall be paid to any holder entitled by reason of the Sutherland Merger to receive certificates or Book-Entry shares representing Company Common Stock and no cash payment in lieu of a fractional share of Company Common Stock shall be paid to any such holder pursuant to Section 3.1(e) until such holder shall have surrendered its Certificates or Book-Entry Share pursuant to this Section 3.3 . Subject to applicable Law, following surrender of any such Certificate or Book-Entry shares, such holder shall be paid, in each case, without interest, (i) the amount of any dividends or other distributions theretofore paid with respect to the shares of Company Common Stock represented by the certificate or Book-Entry shares received by such holder and having a record date on or after the Sutherland Merger Effective Time and a payment date prior to such surrender and (ii) at the appropriate payment date or as promptly as practicable thereafter, the amount of any dividends or other distributions payable with respect to such shares of Company Common Stock and having a record date on or after the Sutherland Merger Effective Time but prior to such surrender and a payment date on or after such surrender.

(f)          In the event of a transfer of ownership of shares of Sutherland Common Stock that is not registered in the transfer records of Sutherland, it shall be a condition of payment that any Certificate or Book-Entry Share surrendered or transferred in accordance with the procedures set forth in this Section 3.3 shall be properly endorsed or shall be otherwise in proper form for transfer, and that the Person requesting such payment shall have paid any Taxes required by reason of the payment of the Sutherland Merger Consideration to a Person other than the registered holder of the Certificate surrendered, or Book-Entry Share transferred, or shall have established to the reasonable satisfaction of Company that such Tax either has been paid or is not applicable.

(g)          Any portion of the Exchange Fund that remains undistributed to the holders of Sutherland Common Stock for twelve (12) months after the Sutherland Merger Effective Time shall be delivered to Company upon demand, and any former holders of Sutherland Common Stock prior to the Sutherland Merger who have not theretofore complied with this Article 3 shall thereafter look only to Company for payment of their claims with respect thereto.

(h)          None of the Sutherland Parties, the Company Parties, the Surviving Entity, the Exchange Agent, or any employee, officer, director, agent or Affiliate of such entities, shall be liable to any Person in respect of the Sutherland Merger Consideration if the Exchange Fund (or the appropriate portion thereof) has been delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law. Any amounts remaining unclaimed by holders of any shares of Sutherland Common Stock immediately prior to the time at which such amounts would otherwise escheat to, or become property of, any Governmental Authority shall, to the extent permitted by applicable Law, become the property of Company free and clear of any claims or interest of such holders or their successors, assigns or personal representatives previously entitled thereto.

(i)          As soon as reasonably practicable after the Partnership Merger Effective Time, Company and the Surviving Partnership shall take such action as may be reasonably necessary to provide the former holders of Sutherland OP Units with the Partnership Merger Consideration that is in the form of cash in lieu of fractional shares pursuant to Section 3.1(e) , subject to the receipt of customary representations from such holders.

Section 3.4            Withholding Rights . Each and any Sutherland Party, Company Party, the Surviving Entity, the Surviving Partnership or the Exchange Agent, as applicable, shall be entitled to deduct and withhold from the Merger Consideration and any other amounts otherwise payable pursuant to this Agreement to any holder of Sutherland Common Stock or Sutherland OP Units, such amounts as it is required to deduct and withhold with respect to such payments under the Code or any other provision of state, local or foreign Tax Law. Any such amounts so deducted and withheld shall be paid over to the applicable Governmental Authority in accordance with applicable Law and shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 3.5            Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Company, the posting by such Person of a bond in such reasonable amount as Company may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will pay in exchange for such lost, stolen or destroyed Certificate the Sutherland Merger Consideration to which the holder thereof is entitled pursuant to this Article 3 .

Section 3.6            Dissenters Rights . No dissenters’ or appraisal rights shall be available with respect to the Mergers or the other transactions contemplated by this Agreement.

Section 3.7            General Effects of the Mergers .

(a)          At the Sutherland Merger Effective Time, the effect of the Sutherland Merger shall be as set forth in this Agreement and as provided in the applicable provisions of the MGCL and the DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Sutherland Merger Effective Time, all of the property, rights, privileges, powers and franchises of Sutherland and Merger Sub shall vest in the Surviving Entity, and all debts, liabilities and duties of Sutherland and Merger Sub shall become the debts, liabilities and duties of the Surviving Entity.

(b)          At the Partnership Merger Effective Time, the effect of the Partnership Merger shall be as set forth in this Agreement and as provided in the applicable provisions of the DRULPA. Without limiting the generality of the foregoing, and subject thereto, at the Partnership Merger Effective Time, all of the property, rights, privileges, powers and franchises of Company Operating Partnership and Sutherland Operating Partnership shall vest in the Surviving Partnership, and all debts, liabilities and duties of Company Operating Partnership and Sutherland Operating Partnership shall become the debts, liabilities and duties of the Surviving Partnership.

Article 4

REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES

Except (a) as set forth in the disclosure letter prepared by the Company Parties and delivered by the Company Parties to the Sutherland Parties prior to the execution and delivery of this Agreement (the “ Company Disclosure Letter ”) (it being acknowledged and agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosed with respect to the section or subsection of this Agreement to which it corresponds and any other section or subsection of this Agreement to the extent the applicability of such disclosure is reasonably apparent on its face (it being understood that to be so reasonably apparent on its face, it is not required that the other Sections be cross-referenced); provided , that no disclosure shall qualify any Fundamental Representation unless it is set forth in the specific section or subsection of the Company Disclosure Letter corresponding to such Fundamental Representation; provided, further , that nothing in the Company Disclosure Letter is intended to broaden the scope of any representation or warranty of the Company Parties made herein) or (b) as disclosed in the Company SEC Documents publicly available, filed with, or furnished to, as applicable, the SEC on or after December 31, 2015 and prior to the date of this Agreement (excluding any information or documents incorporated by reference therein and excluding any disclosures contained in such documents under the headings “Risk Factors” or “Forward Looking Statements” or any other disclosures contained or referenced therein to the extent they are cautionary, predictive or forward-looking in nature), and then only to the extent that the relevance of any disclosed event, item or occurrence in such Company SEC Documents to a matter covered by a representation or warranty set forth in this Article 4 is reasonably apparent on its face; provided , that the disclosures in the Company SEC Documents shall not be deemed to qualify (i) any Fundamental Representations, which matters shall only be qualified by specific disclosure in the respective corresponding Section of the Company Disclosure Letter, and (ii) the representations and warranties made in Section 4.4 (No Conflict; Required Filings and Consents), Section 4.6(a) - (c) (SEC Documents; Financial Statements), Section 4.7(c) (Absence of Certain Changes or Events), Section 4.8 (No Undisclosed Liabilities), Section 4.20 (Brokers) and Section 4.21 (Opinion of Financial Advisor), the Company Parties hereby jointly and severally represent and warrant to the Sutherland Parties that:

Section 4.1            Organization and Qualification; Subsidiaries .

(a)          Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite corporate power and authority to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Merger Sub is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the requisite limited liability company power and authority to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Each of Company and Merger Sub is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

(b)          Each Company Subsidiary is duly organized, validly existing and in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation or organization, as the case may be, and has the requisite organizational power and authority to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Each Company Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

(c)           Section 4.1(c) of the Company Disclosure Letter sets forth a true and complete list of the Company Subsidiaries and their respective jurisdictions of incorporation or organization, as the case may be, the jurisdictions in which Company and the Company Subsidiaries are qualified or licensed to do business, and the type of and percentage of interest held, directly or indirectly, by Company in each Company Subsidiary, including a list of each Company Subsidiary that is a “qualified REIT subsidiary” within the meaning of Section 856(i)(2) of the Code (each a “ Qualified REIT Subsidiary ”) or a “taxable REIT subsidiary” within the meaning of Section 856(l) of the Code (each, a “ Taxable REIT Subsidiary ”) and each Company Subsidiary that is an entity taxable as a corporation which is neither a Qualified REIT Subsidiary nor a Taxable REIT Subsidiary.

(d)          Neither Company nor any Company Subsidiary directly or indirectly owns any equity interest or investment (whether equity or debt) in any Person (other than in the Company Subsidiaries and investments in short-term investment securities).

(e)          Company has made available to Sutherland complete and correct copies of the Company Governing Documents. Each of Company and the Company Operating Partnership is in compliance with the terms of its Company Governing Documents in all material respects. True and complete copies of Company’s and the Company Operating Partnership’s minute books, as applicable, have been made available by Company to Sutherland.

(f)          Company has not exempted any “Person” from the “Aggregate Stock Ownership Limit” or the “Common Stock Ownership Limit” or established or increased an “Excepted Holder Limit,” as such terms are defined in the Company Charter, which exemption or Excepted Holder Limit is currently in effect.

Section 4.2            Authority .

(a)          Each of the Company Parties has the requisite corporate or limited partnership power and authority, as applicable, to execute and deliver this Agreement, to perform its obligations hereunder and, subject to receipt of the Company Stockholder Approval, to consummate the transactions contemplated by this Agreement, including the Mergers. The execution and delivery of this Agreement by each of the Company Parties and the consummation by the Company Parties of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate and limited partnership action, and no other corporate or limited partnership proceedings on the part of the Company Parties are necessary to authorize this Agreement or the Mergers or to consummate the other transactions contemplated by this Agreement, subject, (i) with respect to the Sutherland Merger, to receipt of the Company Stockholder Approval, to the filing of the Articles of Merger with, and acceptance for record of the Articles of Merger by, the SDAT, and to the filing of the Sutherland Certificate of Merger with, and acceptance for record of the Sutherland Certificate of Merger by, the DE SOS, and (ii) with respect to the Partnership Merger, to the filing of the Partnership Certificate of Merger with, and acceptance for record of the Partnership Certificate of Merger by, the DE SOS.

(b)          This Agreement has been duly executed and delivered by the Company Parties, and assuming due authorization, execution and delivery by the Sutherland Parties, constitutes a legally valid and binding obligation of the Company Parties enforceable against the Company Parties in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

(c)          The Company Board has (i) determined that the terms of this Agreement, the Mergers and the other transactions contemplated by this Agreement are fair to and in the best interests of the holders of Company Common Stock and Company OP Units, (ii) approved, authorized, adopted and declared advisable this Agreement and the consummation of the Mergers and the other transactions contemplated by this Agreement, (iii) directed that the issuance of Company Common Stock in the Sutherland Merger as contemplated hereby be submitted to a vote of the holders of Company Common Stock and (iv) resolved to recommend that holders of Company Common Stock vote in favor of the issuance of Company Common Stock in the Sutherland Merger as contemplated hereby (such recommendation, the “ Company Board Recommendation ”), which resolutions remain in full force and effect and have not been subsequently rescinded, modified or withdrawn in any way, except as may be permitted after the date hereof by Section 7.3 .

(d)          Company, as the sole member of Merger Sub, has approved this Agreement and the Merger.

Section 4.3            Approval Required . The affirmative vote of the holders of a majority of the votes cast at a meeting of stockholders duly called and at which a quorum is present (the “ Company Stockholder Approval ”) in favor of the issuance of Company Common Stock in the Sutherland Merger as contemplated hereby, is the only vote of holders of securities of Company or the Company Operating Partnership required to approve this Agreement, the Mergers and the other transactions contemplated by this Agreement.

Section 4.4            No Conflict; Required Filings and Consents .

(a)          The execution and delivery of this Agreement by each of the Company Parties do not, and the performance of this Agreement and its obligations hereunder will not, (i) assuming receipt of the Company Stockholder Approval, conflict with or violate any provision of (A) the Company Governing Documents or the Merger Sub Governing Documents or (B) any equivalent organizational or governing documents of any other Company Subsidiary, (ii) assuming that all consents, approvals, authorizations and permits described in Section 4.4(b) have been obtained, all filings and notifications described in Section 4.4(b) have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to any Company Party or any other Company Subsidiary or by which any property or asset of any Company Party or any other Company Subsidiary is bound, or (iii) require any consent or approval (except as contemplated by Section 4.4(b) ) under, result in any breach of any obligation or any loss of any benefit or material increase in any cost or obligation of any Company Party or any other Company Subsidiary under, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to any other Person any right of termination, acceleration or cancellation (with or without notice or the lapse of time or both) of, or give rise to any right of purchase, first offer or forced sale under or result in the creation of a Lien on any property or asset of any Company Party or any other Company Subsidiary pursuant to, any Contract or Company Permit to which any Company Party or any other Company Subsidiary is a party, except, as to clauses (ii) and (iii) above, for any such conflicts, violations, breaches, defaults or other occurrences which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

(b)          The execution and delivery of this Agreement by each of the Company Parties do not, and the performance of this Agreement by each of the Company Parties will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) the filing with the SEC of (A) the Company Proxy Statement, (B) the Form S-4 and the declaration of effectiveness of the Form S-4, and (C) such reports under, and other compliance with, the Exchange Act and the Securities Act as may be required in connection with this Agreement and the transactions contemplated by this Agreement, (ii) as may be required under the rules and regulations of the NYSE, (iii) the filing of the Articles of Merger with, and the acceptance for record of the Articles of Merger by, the SDAT pursuant to the MGCL, (iv) the filing of the Sutherland Certificate of Merger with, and the acceptance for record of the Sutherland Certificate of Merger by, the DE SOS pursuant to the DLLCA, (v) the filing of the Partnership Certificate of Merger with, and the acceptance for record of the Partnership Certificate of Merger by, the DE SOS pursuant to the DRULPA, (vi) such filings and approvals as may be required by any applicable state securities or “blue sky” Laws, (vii) the consents, authorizations, orders or approvals of each Governmental Authority or Agency listed in Section 8.1(a) of the Company Disclosure Letter and (viii) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications which, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

Section 4.5            Capital Structure .

(a)          The authorized capital stock of Company consists of 500,000,000 shares of Company Common Stock, and 50,000,000 shares of preferred stock, $0.0001 par value per share (“ Company Preferred Stock ”). At the close of business on March 31, 2016, (i) 7,970,886 shares of Company Common Stock were issued and outstanding, (ii) no shares of Company Preferred Stock were issued and outstanding, (iii) no shares of Company Common Stock were reserved for issuance pursuant to outstanding awards granted pursuant to the Equity Incentive Plan, (iv) 533,868 shares of Company Common Stock were available for grant under the Equity Incentive Plan, (v) 1,779,560 shares of Company Common Stock were reserved for issuance upon exchange of the Exchangeable Notes, and (vi) 926,914 shares of Company Common Stock were reserved for issuance upon redemption of Company OP Units. All of the outstanding shares of capital stock of Company are duly authorized, validly issued, fully paid and nonassessable and were issued in compliance with applicable securities Laws, and all shares of Company Common Stock to be issued in connection with the Sutherland Merger, when so issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and will be issued in compliance with applicable securities Laws. Except as set forth in this Section 4.5 , there is no other outstanding capital stock of Company.

(b)          At the close of business on March 31, 2016, 8,897,800 Company OP Units were issued and outstanding, of which 926,914 Company OP Units were held by limited partners other than Company. Section 4.5(b) of the Company Disclosure Letter sets forth a list of all of the partners of Company Operating Partnership as of the date hereof, together with the number of Company OP Units held by each such partner. All the Company OP Units held by Company are directly owned by Company or a Wholly Owned Company Subsidiary, free and clear of all Liens other than Permitted Liens and free of preemptive rights. All of the Company OP Units are duly authorized and validly issued and were issued in compliance with applicable securities Laws, and all Company OP Units to be issued in connection with the Partnership Merger, when so issued in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and will be issued in compliance with applicable securities Laws.

(c)          All of the outstanding shares of capital stock of each of the Company Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Company Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All shares of capital stock of (or other ownership interests in) each of the Company Subsidiaries which may be issued upon exercise of outstanding options or exchange rights are duly authorized and, upon issuance will be validly issued, fully paid and nonassessable. Company owns, directly or indirectly, all of the issued and outstanding capital stock and other ownership interests of each of the Company Subsidiaries, free and clear of all Liens other than Permitted Liens and free of preemptive rights.

(d)          Except for the Exchangeable Notes, there are no bonds, debentures, notes or other Indebtedness having general voting rights (or convertible into securities having such rights) (“ Company Voting Debt ”) of Company or any Company Subsidiary issued and outstanding. Except for the Exchangeable Notes, the Company OP Units and awards granted pursuant to the Equity Incentive Plan as set forth in Section 4.5(a) of the Company Disclosure Letter, there are no outstanding subscriptions, securities options, warrants, calls, rights, profits interests, stock appreciation rights, phantom stock, convertible securities, preemptive rights, anti-dilutive rights, rights of first refusal or other similar rights, agreements, arrangements, undertakings or commitments of any kind to which Company or any of the Company Subsidiaries is a party or by which any of them is bound obligating Company or any of the Company Subsidiaries to (i) issue, transfer or sell or create, or cause to be issued, transferred or sold or created any additional shares of capital stock or other equity interests or phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any equity security of Company or any Company Subsidiary or securities convertible into or exchangeable for such shares or equity interests, (ii) issue, grant, extend or enter into any such subscriptions, options, warrants, calls, rights, profits interests, stock appreciation rights, phantom stock, convertible securities or other similar rights, agreements, arrangements, undertakings or commitments or (iii) redeem, repurchase or otherwise acquire any such shares of capital stock, Company Voting Debt or other equity interests.

(e)          Neither Company nor any Company Subsidiary is a party to or bound by any Contracts concerning the voting (including voting trusts and proxies) of any capital stock of Company or any of the Company Subsidiaries. Neither Company nor any Company Subsidiary has granted any registration rights on any of its capital stock. No Company Common Stock is owned by any Company Subsidiary.

(f)          Company does not have a “poison pill” or similar stockholder rights plan.

(g)          All dividends or other distributions on the shares of Company Common Stock or Company OP Units and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).

Section 4.6            SEC Documents; Financial Statements; Sarbanes-Oxley Act; Internal Controls; Off Balance Sheet Arrangements; Investment Company Act; Anti-Corruption Laws .

(a)          Company has timely filed with, or furnished (on a publicly available basis) to the SEC, all forms, documents, statements, schedules and reports required to be filed by Company under the Exchange Act or the Securities Act (together with all certifications required pursuant to the Sarbanes-Oxley Act) since February 13, 2013 (the forms, documents, statements and reports filed with the SEC since February 13, 2013 and those filed with the SEC since the date of this Agreement, if any, including any amendments thereto, the “ Company SEC Documents ”). As of their respective filing dates (or the date of their most recent amendment, supplement or modification, in each case, to the extent filed and publicly available prior to the date of this Agreement), the Company SEC Documents (i) complied, or with respect to Company SEC Documents filed after the date hereof, will comply, in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, the Sarbanes-Oxley Act and the applicable rules and regulations of the SEC thereunder, and (ii) did not, or with respect to Company SEC Documents filed after the date hereof, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. None of the Company SEC Documents is, to the Knowledge of Company, the subject of ongoing SEC review and Company does not have any outstanding and unresolved comments from the SEC with respect to any Company SEC Documents. None of the Company SEC Documents is the subject of any confidential treatment request by Company.

(b)          Company has made available to Sutherland complete and correct copies of all written correspondence between the SEC, on one hand, and Company, on the other hand, since February 13, 2013. At all applicable times, Company has complied in all material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations thereunder, as amended from time to time (the “ Sarbanes-Oxley Act ”).

(c)          The consolidated audited and unaudited financial statements of Company and the Company Subsidiaries included, or incorporated by reference, in the Company SEC Documents, including the related notes and schedules (as amended, supplemented or modified by later Company SEC Documents, in each case, to the extent filed and publicly available prior to the date of this Agreement), (i) have been or will be, as the case may be, prepared from, are in accordance with, and accurately reflect the books and records of Company and Company Subsidiaries in all material respects, (ii) complied or will comply, as the case may be, as of their respective dates in all material respects with the then-applicable accounting requirements of the Securities Act and the Exchange Act and the published rules and regulations of the SEC with respect thereto, (iii) have been or will be, as the case may be, prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto, or, in the case of the unaudited financial statements, for normal and recurring year-end adjustments and as may be permitted by the SEC on Form 10-Q, Form 8-K, Regulation S-X or any successor or like form under the Exchange Act, which such adjustments are not, in the aggregate, material to Company) and (iv) fairly present, in all material respects (subject, in the case of unaudited financial statements, for normal and recurring year-end adjustments, none of which is material), the consolidated financial position of Company and the Company Subsidiaries, taken as a whole, as of their respective dates and the consolidated statements of income and the consolidated cash flows of Company and the Company Subsidiaries for the periods presented therein. There are no internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge of Company, threatened, in each case regarding any accounting practices of Company.

(d)          Since February 13, 2013, (A) Company has designed and maintained disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) to ensure that material information required to be disclosed by Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and communicated to Company’s management as appropriate to allow timely decisions regarding required disclosure, and (B) to the Knowledge of Company, such disclosure controls and procedures are effective in timely alerting Company’s management to material information required to be included in Company’s periodic reports required under the Exchange Act (if Company were required to file such reports). Company and Company Subsidiaries have designed and maintained a system of internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) under the Exchange Act) sufficient to provide reasonable assurances (i) regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, (ii) that transactions are executed in accordance with management’s general or specific authorizations, (iii) that transactions are recorded as necessary to permit preparation of financial statements and to maintain asset accountability, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization, (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (vi) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Company has disclosed to Company’s auditors and audit committee (and made summaries of such disclosures available to Sutherland) (1) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect in any material respect Company’s ability to record, process, summarize and report financial information and (2) any fraud, to the Knowledge of Company, whether or not material, that involves management or other employees who have a significant role in internal control over financial reporting.

(e)          The Company Parties are not, and none of the other Company Subsidiaries are, a party to, and none of the Company Parties or any of the other Company Subsidiaries have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract, including any Contract relating to any transaction or relationship between or among any Company Parties and any other Company Subsidiary, on the one hand, and any unconsolidated Affiliate of a Company Party or any other Company Subsidiary, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, any Company Party, any other Company Subsidiary or such Company Party’s or Company Subsidiary’s audited financial statements or other Company SEC Documents.

(f)          None of the Company Parties or any other Company Subsidiary is required to be registered as an investment company under the Investment Company Act.

(g)          Neither Company nor any Company Subsidiary nor, to the Knowledge of Company, any director, officer or Representative of Company or any Company Subsidiary has (i) used any corporate funds for any unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) made any unlawful payment to any foreign or domestic government official or employee or (iii) made any unlawful bribe, rebate, payoff, kickback or other unlawful payment to any foreign or domestic government official or employee, in each case, in violation in any material respect of any applicable Anti-Corruption Law. Neither Company nor any Company Subsidiary has received any written communication that alleges that Company or any Company Subsidiary, or any of their respective Representatives, is, or may be, in violation of, or has, or may have, any liability under, any Anti-Corruption Law.

Section 4.7            Absence of Certain Changes or Events . Since December 31, 2015 through the date of this Agreement, (a) each Company Party and each other Company Subsidiary has conducted its business in all material respects in the ordinary course of business consistent with past practice, (b) no Company Party or Company Subsidiary has taken any action that would have been prohibited by Section 6.1(b) (Conduct of the Business of Company) if taken from and after the date of this Agreement and (c) there has not been any Company Material Adverse Effect or any event, circumstance, change, effect, development, condition or occurrence that, individually or in the aggregate with all other events, circumstances, changes, effects, developments, conditions or occurrences, would reasonably be expected to have a Company Material Adverse Effect.

Section 4.8            No Undisclosed Liabilities . Except (a) as disclosed, reflected or reserved against on the balance sheet of Company dated as of December 31, 2015 (including the notes thereto), (b) for liabilities or obligations incurred in connection with the transactions contemplated by this Agreement and (c) for liabilities or obligations incurred in the ordinary course of business consistent with past practice since December 31, 2015, neither Company nor any Company Subsidiary has any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that either alone or when combined with all other liabilities of a type not described in clauses (a), (b) or (c) above, has had, or would reasonably be expected to have, a Company Material Adverse Effect.

Section 4.9            Permits; Compliance with Law .

(a)          Except for the authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances that are the subject of Section 4.11 , Section 4.15 and Section 4.16 , which are addressed solely in those Sections, each of the Company Parties and each other Company Subsidiary is in possession of all authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances of any Governmental Authority necessary for Company and each Company Subsidiary to own, lease and, to the extent applicable, operate its properties or to carry on its respective business substantially as they are being conducted as of the date hereof (the “ Company Permits ”), and all such Company Permits are valid and in full force and effect, except where the failure to be in possession of, or the failure to be valid or in full force and effect of, any of the Company Permits, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. No event has occurred with respect to any of the Company Permits which permits, or after notice or lapse of time or both would permit, revocation or termination thereof or would result in any other material impairment of the rights of the holder of any such Company Permits. To the Knowledge of Company, there is not pending any applicable petition, objection or other pleading with any Governmental Authority having jurisdiction or authority over the operations of Company or the Company Subsidiaries that impairs the validity of any Company Permit or which would reasonably be expected, if accepted or granted, to result in the revocation of any Company Permit.

(b)          No Company Party or any other Company Subsidiary is, and for the past three (3) years no Company Party or any other Company Subsidiary has been, in conflict with, or in default or violation of (i) any Law applicable to the Company Parties or any other Company Subsidiary or by which any property or asset of the Company Parties or any other Company Subsidiary is bound (except for compliance with Laws addressed in Section 4.11 , Section 4.12 , Section 4.13 , Section 4.15 or Section 4.16 which are solely addressed in those Sections), or (ii) any Company Permits (except for the Company Permits addressed in Section 4.11 , Section 4.15 or Section 4.16 which are solely addressed in those Sections), except, in each case, for any such conflicts, defaults or violations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

Section 4.10          Litigation . Other than as disclosed in Section 4.10 of the Company Disclosure Letter, (a) there is no material action, suit, proceeding or investigation to which Company or any Company Subsidiary is a party (either as plaintiff or defendant) pending or, to the Knowledge of Company, threatened before any Governmental Authority, and, to the Knowledge of Company, there is no basis for any such action, suit, proceeding or investigation; (b) none of Company and the Company Subsidiaries has been permanently or temporarily enjoined by any Order, judgment or decree of any Governmental Authority from engaging in or continuing to conduct the business of Company or the Company Subsidiaries; (c) no Order of any Governmental Authority has been issued in any proceeding to which Company or any of the Company Subsidiaries is or was a party, or, to the Knowledge of Company, in any other proceeding, that enjoins or requires Company or any of the Company Subsidiaries to take action of any kind with respect to its businesses, assets or properties; and (d) since January 1, 2016, none of Company, any Company Subsidiary or any Representative of the foregoing has received or made any settlement offer for any material Action to which Company or any Company Subsidiary is a party or potentially could be a party (in each case, either as plaintiff or defendant), other than settlement offers that do not exceed $500,000 individually.

Section 4.11          Mortgage Business .

(a)          Company has not conducted directly, and no Company Subsidiary other than the Mortgage Company Subsidiary and the Mortgage Company Investors has conducted, the Company's business of origination, acquisition, financing, sale, servicing and management of Mortgage Loans in any material respect. The Mortgage Company Subsidiary has complied in all material respects with, and all documentation prepared or used by such Mortgage Company Subsidiary in connection with the origination, processing, underwriting and credit approval of any Mortgage Loan originated or purchased by such Mortgage Company Subsidiary, and has satisfied, in all material respects, (i) all applicable Laws and Applicable Requirements with respect to the origination, insuring, purchase, sale, or pooling of such Mortgage Loans and (ii) the requirements of each Loan Sale Agreement. The Mortgage Company Subsidiary has complied in all material respects with (i) all applicable Laws and Applicable Requirements with respect to the Servicing of such Mortgage Loans and (ii) the requirements of each Servicing Agreement with respect to any Mortgage Loan.

(b)          No Agency or other Investor has (i) claimed in writing that the Mortgage Company Subsidiary has violated or has not complied in any material respect with the applicable underwriting standards with respect to Mortgage Loans sold by the Mortgage Company Subsidiary to such Agency or other Investor, (ii) imposed in writing material restrictions on the activities (including commitment authority) of the Mortgage Company Subsidiary as a seller or servicer for such Agency or Investor, or (iii) indicated in writing to the Mortgage Company Subsidiary that it has terminated or intends to terminate its seller and/or servicer relationship (including any Loan Sale Agreement or Servicing Agreement) with the Mortgage Company Subsidiary for failure to comply with applicable Laws or the applicable Loan Sale Agreement, Servicing Agreement rules, regulations, guidelines, handbooks and other requirements of such Agency or other Investor.

(c)           Section 4.11(c) of the Company Disclosure Letter sets forth a complete, true and correct list of all Mortgage Loans held by Company or any Company Subsidiary as of February 29, 2016, and listing each Mortgage Loan that is a non-performing loan or in foreclosure, including with a Mortgagor subject to bankruptcy. To the Knowledge of Company, the information relating to each Mortgage Loan set forth in Section 4.11(c) of the Company Disclosure Letter is true and correct in all material respects.

(d)           Section 4.11(d) of the Company Disclosure Letter sets forth a complete, true and correct list of Serviced Loans as of February 29, 2016 and the related Servicing Agreement. All of the Servicing Agreements under which the Mortgage Company Subsidiary Services any Mortgage Loans are in full force and effect, and are unencumbered by Liens other than Permitted Liens, except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of Company, no event of default (or other similar termination event) or event that, with notice or lapse of time or both, is reasonably likely to become an event of default (or other similar termination event), exists under any of the Servicing Agreements under which the Mortgage Company Subsidiary Services any Mortgage Loans, except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

(e)          The Serviced Loans have been and are so Serviced in accordance with Accepted Servicing Practices or other standards set forth in the related Servicing Agreement, and with the other requirements of the applicable Servicing Agreement, except for immaterial failures to comply with such requirements.

(f)           Section 4.11(f) of the Company Disclosure Letter sets forth each approval from any Agency for the sale, origination, lending or Servicing of Mortgage Loans, participation interests in Mortgage Loans and related assets held by the Mortgage Company Subsidiary. The Mortgage Company Subsidiary is in good standing and is in compliance in all material respects with all applicable eligibility requirements for each approval set forth on Section 4.11(f) of the Company Disclosure Letter.

(g)          No Mortgage Company Subsidiary has been threatened with any revocation, suspension or material limitation of any approval as a GNMA issuer, Fannie Mae Seller-Servicer, Freddie Mac Seller-Servicer, FHA Non-Supervised Lender, USDA approved lender, VA approved lender or SBA approved lender, as applicable.

(h)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of Company, no audit or investigation by a Governmental Authority or Investor is pending or threatened against any Mortgage Company Subsidiary or Mortgage Company Investor that is reasonably likely to result in:

(i)          a claim of a failure to comply with applicable Laws,

(ii)         rescission of any insurance or guaranty contract or other Contract of such Mortgage Company Subsidiary or Mortgage Company Investor,

(iii)        payment by such Mortgage Company Subsidiary or Mortgage Company Investor of a penalty to any Governmental Authority or Investor, or

(iv)        revocation, suspension or material limitation of any Company Permit.

(i)          There is no pending or, to the Knowledge of Company, threatened, cancellation or reduction of any Loan Sale Agreement to which any Mortgage Company Subsidiary or Mortgage Company Investor is a party and the obligations of each Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, under each Loan Sale Agreement and Servicing Agreement are being performed by each Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, and, to the Knowledge of Company, the other parties to each Loan Sale Agreement and Servicing Agreement, in each case, in accordance with its terms in all material respects. There is no material breach by any Mortgage Company Subsidiary or Mortgage Company Investor under any Loan Sale Agreement. Except for claims that have been fully resolved and released, no third party has, to its Knowledge, (i) alleged a breach of any representation, warranty or covenant made by Company or any Mortgage Company Subsidiary or Mortgage Company Investor with respect to any Mortgage Loan for which a repurchase of, or any indemnity obligation relating to, such Mortgage Loan could be required or (ii) exercised or, to the Knowledge of Company, is threatening to exercise its contractual right against any Mortgage Company Subsidiary or Mortgage Company Investor arising out of a breach of any Loan Sale Agreement or Servicing Agreement, including to require any such Mortgage Company Subsidiary or Mortgage Company Investor to repurchase any Company Loan or Agency Serviced Loan from such third party, indemnify such third party or other Persons or make a make-whole or other similar payment to such third party or other Persons. All repurchase, indemnification and make-whole (or other similar payments) claims asserted under any Loan Sale Agreement or Servicing Agreement against Company or any Mortgage Company Subsidiary or Mortgage Company Investor due to a breach of any representation, warranty or covenant since January 1, 2013 are set forth on Section 4.11(i) of the Company Disclosure Letter.

(j)          With respect to Mortgage Loans that were originated by the Mortgage Company Subsidiary, each Company Loan and Agency Serviced Loan was underwritten and originated, and the Mortgage Loan Documents maintained by the Mortgage Company Subsidiary with respect thereto are being maintained in all material respects by the Mortgage Company Subsidiary in compliance with all applicable Laws and, if applicable, the requirements of the Person acquiring such Company Loan or Agency Serviced Loan (including any Investor), the applicable Agency, or the insurer or guaranty (if any) insuring or guaranteeing such Company Loan or Agency Serviced Loan in effect and applicable at the time such insurance or guaranty was obtained, except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

(k)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) as of the time it was made or purchased by a Mortgage Company Subsidiary or Mortgage Company Investor, each Company Loan and Agency Serviced Loan was evidenced by a Mortgage Note and was duly secured by a valid, subsisting, enforceable and perfected first Lien or subordinated Lien on the related Mortgaged Property, in each case, on such forms and with such terms as complied in all material respects with all Applicable Requirements, (ii) each Mortgage related to a Company Loan or Agency Serviced Loan created an ownership interest in an estate in fee simple in the Mortgaged Property, (iii) each Mortgage Note related to a Company Loan or Agency Serviced Loan and the related Mortgage is genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting generally the enforcement of creditors’ rights whether considered in a proceeding at law or at equity, and (iv) no Company Loan or Agency Serviced Loan is subject to any rights of rescission, reformation, set-off, counterclaim or defense of usury, and no such right of rescission, reformation, set-off, counterclaim, or defense has been asserted with respect thereto, nor will the operation of any of the terms of the applicable Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either such Mortgage Note or such Mortgage unenforceable by the lender, in whole or in part, or subject to any right of rescission, reformation, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, reformation, set-off, counterclaim, or defense has been asserted with respect thereto.

(l)          All buildings or other customary insured improvements upon each Mortgaged Property related to a Company Loan or Agency Serviced Loan are insured by a qualified insurer acceptable under any Guide or such other applicable Program Lender guidelines against loss by fire, flood hazards of extended coverage and such other hazards as are provided for in a Guide or such other applicable Program Lender guidelines, pursuant to insurance policies conforming to Applicable Requirements, and no payments of mortgage insurance premiums are past due thereunder.

(m)          With respect to Company Loans originated by the Mortgage Company Subsidiary and Agency Serviced Loans, the Mortgage Company Subsidiary has complied in all material respects with the requirements of any applicable Law, including usury, truth in lending, real estate settlement procedures, consumer credit protection (including uniform consumer credit code laws), predatory and abusive lending laws, equal credit opportunity, ability-to-repay/qualified mortgage rules promulgated under Regulation Z, fair housing and disclosure laws or unfair and deceptive practices laws, unfair collection practices, CFPB servicing protocols, and fair credit reporting, applicable to the origination and servicing thereof. Each Company Loan originated by the Mortgage Company Subsidiary and Agency Serviced Loan was underwritten, originated and Serviced in compliance in all material respects with applicable Law, and was not (i) a “high cost” loan under the Home Ownership and Equity Protection Act of 1994, as amended, or (ii)  a “high cost,” “threshold,” “covered,” or “predatory” loan under any other applicable Law (or a similarly classified loan using different terminology under a law, regulation or ordinance imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees).

(n)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) each Mortgage related to a Company Loan was properly recorded and was a valid, perfecting and enforceable either first Lien and first priority security interest or subordinated Lien and subordinated priority security interest with respect to each Company Loan on the Mortgaged Property, including all improvements on the Mortgaged Property, (ii) any Mortgage Loan Document related to and delivered in connection with the Company Loans established and created a valid, existing and enforceable (A) first Lien and first priority security interest with respect to each first Lien Company Loan, or (B) subordinated Lien and subordinated priority security interest with respect to each subordinated Lien Company Loan, in either case, on the property described therein, and (iii) each Mortgage Note related to a Company Loan is not and has not been secured by any collateral pledged account or other security other than the Lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage referred to in this paragraph.

(o)          (i) Each Mortgage Note and each Mortgage related to a Company Loan originated by the Mortgage Company Subsidiary have been duly and properly executed by the parties thereto, and (ii) the borrower under each Mortgage related to a Company Loan originated by the Mortgage Company Subsidiary has received all material disclosure materials required by applicable Law as of the origination date of such Mortgage with respect to the making of fixed or adjustable rate mortgage loans, as applicable, in each case, except for immaterial failures to comply with such requirements.

(p)          With respect to Company Loans originated by the Mortgage Company Subsidiary and Agency Serviced Loans, the relevant files are complete and accurate, in all material respects, and are being maintained in all material respects in accordance with all Applicable Requirements.

(q)          No fraud, with respect to a Company Loan or an Agency Serviced Loan, has taken place (i) on the part of the Mortgage Company Subsidiary or any of its respective employees or, to the Knowledge of Company, on the part of Mortgagor, or any other Person, including any servicer, any appraiser, escrow agent, broker or correspondent, closing or settlement agent, closing attorney, title company or any other party involved in the origination or servicing of the Company Loan or in the determination of the value of the Mortgaged Property or the sale of the Mortgaged Property, or (ii) that would impair in any way the rights of Sutherland, Company or the Mortgage Company Subsidiary in the Company Loan or Mortgaged Property or that violated applicable Law.

(r)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Mortgage Company Subsidiary or Mortgage Company Investor, with respect to each Mortgage Loan owned by such Mortgage Company Subsidiary or Mortgage Company Investor as of the origination date, or MERS as nominee for such Mortgage Company Subsidiary or Mortgage Company Investor, with respect to each Mortgage Loan owned by any Mortgage Company Subsidiary or Mortgage Company Investor as of the purchase date, is the sole owner of record and holder of each Mortgage Loan and the related Mortgage Note and the Mortgage are not assigned or pledged to any other Person, and each such Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, has good, indefeasible and marketable title thereto and has full right and authority perform the transactions contemplated by this Agreement.

(s)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Mortgage and related Mortgage Note owned by any Mortgage Company Subsidiary or Mortgage Company Investor contain customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby (such as for the enforcement of the Lien against the Mortgaged Property), including, (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure thereon, or trustee’s sale of, the Mortgaged Property pursuant to proper procedures, the holder of the Mortgage Loan will be able to deliver good and marketable title to the Mortgaged Property.

(t)          Except for claims that have been fully resolved and released, no Mortgage Company Subsidiary or Mortgage Company Investor has asserted any material contractual right against, nor, to the Knowledge of Company, do facts or circumstances exist that would constitute a material breach by any Person (other than such Mortgage Company Subsidiary or Mortgage Company Investor) under any Loan Purchase Agreement. All repurchase, indemnification and make-whole (or other similar payments) claims asserted under any Loan Purchase Agreement by Company or any Mortgage Company Subsidiary or Mortgage Company Investor since January 1, 2013 are set forth on Section 4.11(t) of the Company Disclosure Letter.

Section 4.12          Taxes .

(a)          Each Company Party and each other Company Subsidiary has timely filed with the appropriate Governmental Authority all United States federal income Tax Returns and all other material Tax Returns required to be filed, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct in all material respects. Each Company Party and each other Company Subsidiary has duly paid (or there has been paid on their behalf), or made adequate provisions in accordance with GAAP for, all material Taxes required to be paid by them, whether or not shown on any Tax Return. True and materially complete copies of all United States federal income Tax Returns that have been filed with the IRS by Company and each Company Subsidiary with respect to the taxable years ending on or after Company’s formation have been made available to Sutherland.

(b)          Company (i) for all taxable years commencing with Company’s year ending December 31, 2011 and through December 31, 2015, has been subject to taxation as a real estate investment trust within the meaning of Section 856 of the Code (a ” REIT ”) and has satisfied all requirements to qualify as a REIT for such years; (ii) has operated since January 1, 2016 to the date hereof, in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner as to qualify as a REIT for its taxable year that will include the day of the Sutherland Merger; and (iv) has not taken or omitted to take any action that could reasonably be expected to result in a challenge by the IRS or any other Governmental Authority to its status as a REIT, and no such challenge is pending or threatened, to the Knowledge of Company. No Company Subsidiary is a corporation for United States federal income tax purposes, other than a corporation that qualifies as a Qualified REIT Subsidiary or as a Taxable REIT Subsidiary. Company’s dividends paid deduction, within the meaning of Section 561 of the Code, for each taxable year, taking into account any dividends subject to Sections 857(b)(8) or 858 of the Code, has not been less than the sum of (i) Company’s REIT taxable income, as defined in Section 857(b)(2) of the Code, determined without regard to any dividends paid deduction for such year and (ii) Company’s net capital gain for such year.

(c)          (i) There are no audits, investigations by any Governmental Authority or other proceedings pending or, to the Knowledge of Company, threatened with regard to any material Taxes or Tax Returns of any Company Party or any other Company Subsidiary; (ii) no material deficiency for Taxes of any Company Party or any other Company Subsidiary has been claimed, proposed or assessed in writing or, to the Knowledge of Company, threatened, by any Governmental Authority, which deficiency has not yet been settled except for such deficiencies which are being contested in good faith or with respect to which the failure to pay, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; (iii) no Company Party has, nor has any other Company Subsidiary, waived any statute of limitations with respect to the assessment of material Taxes or agreed to any extension of time with respect to any material Tax assessment or deficiency for any open tax year; (iv) no Company Party is, nor is any other Company Subsidiary, currently the beneficiary of any extension of time within which to file any material Tax Return; and (v) no Company Party has, nor has any of the other Company Subsidiaries, entered into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).

(d)          Each Company Subsidiary that is a partnership, joint venture or limited liability company and that has not elected to be a Taxable REIT Subsidiary has been since its formation treated for United States federal income tax purposes as a partnership, disregarded entity, or Qualified REIT Subsidiary, as the case may be, and not as a corporation or an association taxable as a corporation whose separate existence is respected for federal income tax purposes.

(e)          None of the Company Parties or any of the other Company Subsidiaries hold any asset the disposition of which would be subject to (or to rules similar to) Section 1374 of the Code.

(f)          Since its inception, the Company Parties and the other Company Subsidiaries have not incurred (i) any material liability for Taxes under Sections 857(b)(1), 857(b)(4), 857(b)(5), 857(b)(6)(A), 857(b)(7), 860(c) or 4981 of the Code which have not been previously paid, (ii) any liability for Taxes under Sections 857(b)(5) (for income test violations), 856(c)(7)(C) (for asset test violations), or 856(g)(5)(C) (for violations of other qualification requirements applicable to REITs) and (iii) the Company Parties have not, and none of the other Company Subsidiaries have, incurred any material liability for Tax other than (A) in the ordinary course of business consistent with past practice, or (B) transfer or similar Taxes arising in connection with sales of property. No event has occurred, and to the Knowledge of Company no condition or circumstances exists, which presents a material risk that any material liability for Taxes described clause (i) or (iii) of the preceding sentence or any liability for Taxes described in clause (ii) of the preceding sentence will be imposed upon any Company Party or any other Company Subsidiary.

(g)          The Company Parties and the other Company Subsidiaries have complied, in all material respects, with all applicable Laws relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446 and 3402 of the Code or similar provisions under any state and foreign Laws) and have duly and timely withheld and, in each case, have paid over to the appropriate taxing authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.

(h)          There are no Company Tax Protection Agreements (as hereinafter defined) in force at the date of this Agreement, and, as of the date of this Agreement, no person has raised in writing, or to the Knowledge of Company threatened to raise, a material claim against any Company Party or any other Company Subsidiary for any breach of any Company Tax Protection Agreements. As used in herein, “Company Tax Protection Agreements” means any written agreement to which any Company Party or any other Company Subsidiary is a party pursuant to which: (i) any liability to holders of limited partnership interests in a Company Subsidiary Partnership (as hereinafter defined) relating to Taxes may arise, whether or not as a result of the consummation of the transactions contemplated by this Agreement; and/or (ii) in connection with the deferral of income Taxes of a holder of limited partnership interests or limited liability company in a Company Subsidiary Partnership, any Company Party or any other Company Subsidiary has agreed to (A) maintain a minimum level of debt, continue a particular debt or provide rights to guarantee debt, (B) retain or not dispose of assets, (C) make or refrain from making Tax elections, and/or (D) only dispose of assets in a particular manner. As used herein, “Company Subsidiary Partnership” means a Company Subsidiary that is a partnership for United States federal income tax purposes.

(i)          There are no Tax Liens upon any property or assets of any Company Party or any other Company Subsidiary except Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.

(j)          There are no Tax allocation or sharing agreements or similar arrangements with respect to or involving any Company Party or any other Company Subsidiary, and after the Closing Date no Company Party shall, nor shall any other Company Subsidiary, be bound by any such Tax allocation agreements or similar arrangements or have any liability thereunder for amounts due in respect of periods prior to the Closing Date.

(k)          No Company Party has, nor has any other Company Subsidiary, requested or received any written ruling of a Governmental Authority or entered into any written agreement with a Governmental Authority with respect to any Taxes, and no Company Party or any other Company Subsidiary is subject to written ruling of a Governmental Authority.

(l)          No Company Party or any other Company Subsidiary (i) has been a member of an affiliated group filing a consolidated federal income Tax or (ii) has any liability for the Taxes of any Person (other than any Company Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by Contract, or otherwise.

(m)          No Company Party or any other Company Subsidiary has participated in any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).

(n)          No Company Party or any other Company Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with transactions contemplated by this Agreement.

(o)          No written power of attorney that has been granted by any Company Party or any other Company Subsidiary (other than to Company or a Company Subsidiary) currently is in force with respect to any matter relating to Taxes.

(p)          Neither Company nor any Company Subsidiary has taken any action or failed to take any action which action or failure would reasonably be expected to jeopardize, nor to the Knowledge of Company, is there any other fact or circumstance that could reasonably be expected to prevent, the Sutherland Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

Section 4.13          Benefit Plans .

(a)          Section 4.13(a) of the Company Disclosure Letter contains a list of each material (i) “employee benefit plan” (within the meaning of Section 3(3) of ERISA), whether or not subject to ERISA, (ii) severance, change in control and employment plan, or other Contracts, and (iii) vacation, incentive, bonus, stock option, stock purchase, and restricted stock plan, program or policy sponsored by Company or any Company Subsidiary in which employees of Company or any Company Subsidiary participate (collectively, the “ Company Benefit Plans ”), provided that for the avoidance of doubt, the Company Benefit Plans shall not include any plan, program or policy sponsored by ZAIS Group Holdings, Inc. Company has made available to Sutherland a true and complete copy of (i) each Company Benefit Plan (or, in the case of any unwritten Company Benefit Plans, a description thereof), (ii) the three most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the IRS with respect to each Company Benefit Plan (if any such report was required by Law), (iii) the most recent summary plan description (or similar document) for each Company Benefit Plan for which such a summary plan description is required by Law or was otherwise provided to plan participants or beneficiaries and (iv) each trust agreement and insurance or annuity contract or other funding or financing arrangement relating to any Company Benefit Plan. To the Knowledge of Company, each such Form 5500 and each such summary plan description (or similar document) was as of its date and is true, complete and correct in all material respects.

(b)          The Company Benefit Plans are in compliance in all material respects with all applicable requirements of ERISA, the Code, and other applicable Laws, and have been administered, in all material respects, in accordance with their terms and such laws, except as, individually or the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Each Company Benefit Plan that is intended to be qualified within the meaning of Section 401 of the Code has received a favorable IRS determination letter or is maintained under a prototype or volume submitter document and entitled to rely on a favorable opinion or advisory letter that it is qualified under Section 401(a) of the Code that has not been revoked.

(c)          Except for ordinary and usual claims for benefits by participants and beneficiaries, there are no pending or, to the Knowledge of Company, threatened proceedings with respect to any Company Benefit Plan that could reasonably be expected to result in material liability to Company or any Company Subsidiary.

(d)          All Company Benefit Plans subject to Section 409A of the Code have been amended to conform with Section 409A of the Code. No Company Benefit Plan provides for the reimbursement of Taxes under Section 409A of the Code.

(e)          Company does not provide any medical benefits under any Company Benefit Plan after termination of employment other than as required under Section 4980B of the Code or similar law.

(f)          Neither Company nor any Company Subsidiary of a Company Benefit Plan has engaged in a nonexempt “prohibited transaction” (described in Code Section 4975 or Section 406 of ERISA) that would subject Company or any Company Subsidiary to a material tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Code.

(g)          Company has never, and no ERISA Affiliate has ever, maintained or been obligated to contribute to (i) a Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code or (ii) a Company Benefit Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA.

(h)          Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result, separately or in the aggregate, in the payment, acceleration or enhancement of any compensation or benefits, including, without limitation, the payment of any “excess parachute payments” within the meaning of Section 280G of the Code.

(i)          Neither Company nor any Company Subsidiary is a party to any labor or collective bargaining contract that pertains to employees of Company or any Company Subsidiary and, to the Knowledge of Company, there have been no union organizing activities with respect to employees of Company or any Company Subsidiary since January 1, 2014. There are no pending or, to the Knowledge of Company, threatened actions, suits, proceedings or investigations concerning labor matters with respect to Company or any Company Subsidiary, except for such actions, suits, proceedings or investigations that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Company and each Company Subsidiary is in compliance with all applicable Laws relating to labor, employment, employment practices, wages, hours, the Worker Adjustment Retraining and Notification Act and any similar state or local “mass layoff” or “plant closing” Law, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for such events or circumstances that, individually or in the aggregate, would not reasonably be expected to result in a Company Material Adverse Effect.

Section 4.14          Intellectual Property . None of the Company Parties or any other Company Subsidiary: (a) owns any registered trademarks, patents or copyrights, (b) has any pending applications, registrations or recordings for any trademarks, patents or copyrights or (c) is a party to any Contracts with respect to use by the Company Parties or any other Company Subsidiary of any trademarks or patents. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) no Intellectual Property used by the Company Parties or any other Company Subsidiary infringes or is alleged to infringe any Intellectual Property rights of any third party, (ii) no Person is misappropriating, infringing or otherwise violating any Intellectual Property of the Company Parties or any other Company Subsidiary, and (iii) the Company Parties and the other Company Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Company Parties and the other Company Subsidiaries as it is currently conducted. Since January 1, 2014, none of Company or its Company Subsidiaries has received any written or, to the Knowledge of Company, verbal complaint, claim or notice alleging misappropriation, infringement or violation of any Intellectual Property rights of any third party.

Section 4.15          Environmental Matters . Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect: (i) no notification, demand, request for information, citation, summons or order has been received, no complaint has been filed, no penalty has been assessed and no investigation, action, suit or proceeding is pending or, to the Knowledge of Company, is threatened relating to any of the Company Parties, any of the Company Subsidiaries or any of their respective properties, and relating to or arising out of any Environmental Law or Hazardous Substance; (ii) the Company Parties and the other Company Subsidiaries are and, for the past three (3) years, have been, in compliance with all Environmental Laws and all applicable Environmental Permits; (iii) each of the Company Parties and each other Company Subsidiary is in possession of all Environmental Permits necessary for Company and each Company Subsidiary to own, lease and, to the extent applicable, operate its properties or to carry on its respective business substantially as they are being conducted as of the date hereof, and all such Environmental Permits are valid and in full force and effect, except where the failure to be in possession of, or the failure to be valid or in full force and effect of, any of the Environmental Permits, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect; and (iv) there are no liabilities or obligations of the Company Parties or any of the other Company Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise arising under or relating to any Environmental Law or any Hazardous Substance and there is no condition, situation or set of circumstances that would reasonably be expected to result in any such liability or obligation.

Section 4.16          Properties .

(a)          None of the Company Parties or any other Company Subsidiaries own any real property, other than real property acquired as the result of foreclosures on Company Loans in the ordinary course of business.

(b)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, the Company Parties and the other Company Subsidiaries have (i) valid and enforceable leasehold interests in all real property in which the Company Parties or such other Company Subsidiaries hold an interest pursuant to a lease, sublease, license or other similar written agreement (the “ Company Leased Real Property ”, and such leases, subleases, licenses or other similar written agreements, the “ Company Real Property Leases ”), and (ii) good title, or valid and enforceable rights to use under existing franchises, easements or licenses, or valid and enforceable leasehold interests in, all of its tangible personal properties and assets necessary to carry on their businesses as now being conducted, in each of clauses (i) – (ii), free and clear of Liens other than Permitted Liens. Section 4.16 of the Company Disclosure Letter sets forth a true, complete and correct list of all Company Leased Real Property.

(c)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Real Property Lease is valid and in full force and effect and (ii) none of the Company Parties or any of the other Company Subsidiaries, nor to the Knowledge of Company any other party to a Company Real Property Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Company Real Property Lease, and none of the Company Parties or any of the other Company Subsidiaries has received notice that it has breached, violated or defaulted under any Company Real Property Lease.

Section 4.17          Material Contracts .

(a)           Section 4.17(a) of the Company Disclosure Letter sets forth a list of each Contract (other than a Company Benefit Plan) in effect as of the date hereof to which Company or any Company Subsidiary is a party or by which any of its properties or assets are bound that:

(i)          is required to be filed as an exhibit to Company’s Annual Report on Form 10-K pursuant to Item 601(b)(2), (4), (9) or (10) of Regulation S-K promulgated under the Securities Act;

(ii)         obligates the Company Parties or any other Company Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to the Company Parties or any other Company Subsidiary;

(iii)        contains any non-compete or exclusivity provisions with respect to any line of business or geographic area that restricts the business of the Company Parties or any other Company Subsidiary, including upon consummation of the transactions contemplated by this Agreement, or that otherwise restricts the lines of business conducted by the Company Parties or any other Company Subsidiary or the geographic area in which the Company Parties or any other Company Subsidiary may conduct business;

(iv)        is a Contract that obligates the Company Parties or any other Company Subsidiary to indemnify any past or present directors, officers, or employees of the Company Parties or any other Company Subsidiary pursuant to which the Company Parties or any other Company Subsidiary is the indemnitor;

(v)         constitutes (A) an Indebtedness obligation of the Company Parties or any other Company Subsidiary with a principal amount as of the date hereof greater than $500,000 or (B) a Contract (including any so called take-or-pay or keepwell agreements) under which (1) any Person including Company or a Company Subsidiary, has directly or indirectly guaranteed Indebtedness, liabilities or obligations of Company or Company Subsidiary or (2) Company or a Company Subsidiary has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person, including Company or another Company Subsidiary (in each case other than endorsements for the purpose of collection in the ordinary course of business);

(vi)        requires the Company Parties or any other Company Subsidiary to dispose of or acquire assets or properties that (together with all of the assets and properties subject to such requirement in such Contract) have a fair market value in excess of $500,000, or involves any pending or contemplated merger, consolidation or similar business combination transaction;

(vii)       constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relating to a swap or other hedging transaction of any type;

(viii)      constitutes a loan to any Person (other than a Wholly Owned Company Subsidiary or the Company Operating Partnership) by Company or any Company Subsidiary in an amount in excess of $500,000, other than the acquisition or origination of Mortgage Loans in the ordinary course of business by a Mortgage Company Subsidiary;

(ix)         sets forth the operational terms of a joint venture, partnership, limited liability company or strategic alliance of the Company Parties or any other Company Subsidiary with a third party;

(x)          prohibits the pledging of the capital stock of Company or any Company Subsidiary or prohibits the issuance of guarantees by any Company Subsidiary;

(xi)         is with a Governmental Authority;

(xii)        has continuing “earn-out” or other similar contingent purchase price payment obligations, in each case that could result in payments, individually or in the aggregate, in excess of $500,000;

(xiii)       is an employment Contract or consulting Contract;

(xiv)      is a collective bargaining agreement or other Contract with any labor organization, union or association;

(xv)       constitutes an obligation of Conduit with respect to any employees or any other Person that is not Company or a Company Subsidiary; or

(xvi)      is both (A) not made in the ordinary course of business consistent with past practice and (B) material to Company and the Company Subsidiaries, taken as a whole.

Each Contract in any of the categories set forth in Section 4.17(a) to which the Company Parties or any other Company Subsidiary is a party or by which it is bound as of the date hereof is referred to herein as a “ Company Material Contract .”

(b)          Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each Company Material Contract is legal, valid, binding and enforceable on the Company Parties and each other Company Subsidiary that is a party thereto and, to the Knowledge of Company, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, the Company Parties and each other Company Subsidiary has performed all obligations required to be performed by it prior to the date hereof under each Company Material Contract and, to the Knowledge of Company, each other party thereto has performed all obligations required to be performed by it under such Company Material Contract prior to the date hereof. None of the Company Parties or any other Company Subsidiary, nor, to the Knowledge of Company, any other party thereto, is in breach or violation of, or default under, any Company Material Contract, and no event has occurred that, with notice or lapse of time or both, would constitute a violation, breach or default under any Company Material Contract, except where in each case such breach, violation or default, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. None of the Company Parties or any other Company Subsidiary has received notice of any violation or default under any Company Material Contract, except for violations or defaults that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Since December 31, 2014 and as of the date hereof, neither Company nor any Company Subsidiary has received any written notice of the intention of any party to cancel, terminate, materially change the scope of rights under or fail to renew any Company Material Contract.

Section 4.18          Insurance . Company has made available to Sutherland copies of all material insurance policies and all material fidelity bonds or other material insurance Contracts providing coverage for Company and the Company Subsidiaries (the “ Company Insurance Policies ”). Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, all premiums due and payable under all Company Insurance Policies have been paid, and the Company Parties and the other Company Subsidiaries have otherwise complied in all material respects with the terms and conditions of all Company Insurance Policies. No written notice of cancellation or termination has been received by the Company Parties or any other Company Subsidiary with respect to any such policy which has not been replaced on substantially similar terms prior to the date of such cancellation.

Section 4.19          Related Party Transactions . Except as (i) set forth in Section 4.19 of the Company Disclosure Letter, (ii) described in the publicly available Company SEC Documents filed with or furnished to the SEC on or after January 1, 2015 and prior to the date hereof (the “ Company Related Party Agreements ”) or (iii) relate to the GMFS Sale, no agreements, arrangements or understandings between any of the Company Parties or any other Company Subsidiary (or binding on any of their respective properties or assets), on the one hand, and any other Person, on the other hand (other than those exclusively among Company and Company Subsidiaries), are in existence that are not, but are required to be, disclosed under Item 404 of Regulation S-K promulgated by the SEC.

Section 4.20          Brokers . No broker, investment banker or other Person (other than the Persons listed in Section 4.20 of the Company Disclosure Letter, each in a fee amount not to exceed the amount set forth in Section 4.20 of the Company Disclosure Letter, pursuant to the terms of the engagement letter between Company and such Person, true, correct and complete copies of which have been provided to Sutherland prior to the date hereof) is entitled to any broker’s, finder’s or other similar fee or commission in connection with the Mergers and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company Parties or any other Company Subsidiary.

Section 4.21          Opinion of Financial Advisor . The Company Board has received the oral opinion of Houlihan Lokey Capital, Inc. (to be confirmed in writing as of the date of this Agreement), to the effect that, as of the date of such opinion and based on and subject to the assumptions, limitations, qualifications and conditions set forth in its written opinion, the Exchange Ratio is fair, from a financial point of view, to Company. Company will deliver to Sutherland a complete and correct copy of such opinion promptly after receipt thereof by the Company Board solely for informational purposes.

Section 4.22          Takeover Statutes . None of Company, Merger Sub or any Company Subsidiary is, nor at any time during the last two (2) years has been, an “interested stockholder” of Sutherland as defined in Section 3-601 of the MGCL. The Company Board has taken all action necessary to render inapplicable to the Sutherland Merger the restrictions on business combinations contained in Subtitle 6 of Title 3 of the MGCL. The restrictions on control share acquisitions contained in Subtitle 7 of Title 3 of the MGCL are not applicable to the Sutherland Merger. No other “business combination,” “control share acquisition,” “fair price,” “moratorium” or other takeover or anti-takeover statute or similar federal or state Law (collectively, “ Takeover Statutes ”) are applicable to this Agreement, the Mergers or the other transactions contemplated by this Agreement. No dissenters’, appraisal or similar rights are available to the holders of Company Common Stock with respect to the Sutherland Merger and the other transactions contemplated by this Agreement.

Section 4.23          Mortgage Backed Securities . To the Knowledge of Company, the information relating to each mortgage backed security set forth in Section 4.23 of the Company Disclosure Letter is true and correct in all material respects.

Section 4.24          Ownership of Merger Sub; No Prior Activities .

(a)          Merger Sub was formed solely for the purpose of engaging in the transactions contemplated by this Agreement. All of the limited liability company membership interests of Merger Sub are owned, directly or indirectly, by Company.

(b)          Except for the obligations or liabilities incurred in connection with its organization and the transactions contemplated by this Agreement, Merger Sub has not, and will not have prior to the Sutherland Merger Effective Time, incurred, directly or indirectly through any subsidiary or Affiliate, any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person.

Section 4.25          Advisor . Section 4.25 of the Company Disclosure Letter lists each agreement, arrangement or understanding between or among Company or any Company Subsidiary, on the one hand, and Advisor and any of its Affiliates (other than Company or any Company Subsidiary), on the one hand (each, a “ Company Advisor Related Agreement ”). Prior to the date hereof, Company has made available to Sutherland with a true, correct and complete copy of each Company Advisor Related Agreement.

Section 4.26          Information Supplied . None of the information relating to the Company Parties or any other Company Subsidiary contained or incorporated by reference in the Proxy Statements or the Form S-4 or that is provided by any of the Company Parties or any other Company Subsidiary in writing for inclusion or incorporation by reference in any document filed with any other Governmental Authority in connection with the transactions contemplated by this Agreement will (a) in the case of the Proxy Statements, at the time of the mailing thereof, at the time of the Company Stockholders Meeting, at the time the Form S-4 is declared effective or at the Sutherland Merger Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) in the case of the Form S-4 or with respect to any other document to be filed by Company with the SEC in connection with the Mergers or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. All documents that Company is responsible for filing with the SEC in connection with the transactions contemplated by this Agreement, to the extent relating to Company Parties, their officers, directors and partners and the Company Subsidiaries (or other information supplied by or on behalf of Company or any Company Subsidiaries for inclusion therein) will comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act; provided , that no representation is made as to statements made or incorporated by reference by the Sutherland Parties.

Section 4.27          No Other Representations and Warranties . Except for the representations or warranties expressly set forth in this Article 4 , none of the Company Parties or any other Person has made any representation or warranty, expressed or implied, with respect to the Company Parties or any other Company Subsidiary, their respective businesses, operations, assets, liabilities, condition (financial or otherwise), results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Company Parties or any other Company Subsidiary. In particular, without limiting the foregoing disclaimer, none of the Company Parties or any other Person makes or has made any representation or warranty to any Sutherland Party or any of their respective Affiliates or Representatives with respect to, except for the representations and warranties made by the Company Parties in this Article 4 , any oral or written information presented to the Sutherland Parties or any of their respective Affiliates or Representatives in the course of their due diligence of the Company Parties, the negotiation of this Agreement or in the course of the transactions contemplated by this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Company Parties acknowledge and agree that none of the Sutherland Parties or any other Person has made or is making any representations or warranties relating to the Sutherland Parties whatsoever, express or implied, beyond those expressly given by any Sutherland Party in Article 5 , including any implied representation or warranty as to the accuracy or completeness of any information regarding any Sutherland Party furnished or made available to Company or any of their respective Representatives.

Article 5

REPRESENTATIONS AND WARRANTIES OF THE SUTHERLAND PARTIES

Except as set forth in (a) the disclosure letter prepared by the Sutherland Parties and delivered by the Sutherland Parties to the Company Parties prior to the execution and delivery of this Agreement (the “ Sutherland Disclosure Letter ”) (it being acknowledged and agreed that disclosure of any item in any section or subsection of the Sutherland Disclosure Letter shall be deemed disclosed with respect to the section or subsection of this Agreement to which it corresponds and any other section or subsection of this Agreement to the extent the applicability of such disclosure is reasonably apparent on its face (it being understood that to be so reasonably apparent on its face, it is not required that the other Sections be cross-referenced); provided , that no disclosure shall qualify any Fundamental Representation unless it is set forth in the specific section or subsection of the Sutherland Disclosure Letter corresponding to such Fundamental Representation; provided further , that nothing in the Sutherland Disclosure Letter is intended to broaden the scope of any representation or warranty of the Sutherland Parties made herein) or (b) as disclosed in the Sutherland SEC Documents publicly available, filed with, or furnished to, as applicable, the SEC on or after December 31, 2014 and prior to the date of this Agreement (excluding any information or documents incorporated by reference therein and excluding any disclosures contained in such documents under the headings “Risk Factors” or “Forward Looking Statements” or any other disclosures contained or referenced therein to the extent they are cautionary, predictive or forward-looking in nature), and then only to the extent that the relevance of any disclosed event, item or occurrence in such Sutherland SEC Documents to a matter covered by a representation or warranty set forth in this Article 5 is reasonably apparent on its face; provided , that the disclosures in the Sutherland SEC Documents shall not be deemed to qualify (i) any Fundamental Representations, which matters shall only be qualified by specific disclosure in the respective corresponding Section of the Sutherland Disclosure Letter, and (ii) the representations and warranties made in Section 5.4 (No Conflict; Required Filings and Consents), Section 5.6(a)-(b) (SEC Documents; Financial Statements), Section 5.7(c) (Absence of Certain Changes or Events), Section 5.8 (No Undisclosed Liabilities), Section 5.20 (Brokers) and Section 5.21 (Opinion of Financial Advisor), the Sutherland Parties hereby jointly and severally represent and warrant to the Company Parties that:

Section 5.1            Organization and Qualification; Subsidiaries .

(a)          Sutherland is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and has the requisite corporate power and authority to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Sutherland is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

(b)          Each Sutherland Subsidiary is duly organized, validly existing and in good standing (to the extent applicable) under the Laws of the jurisdiction of its incorporation or organization, as the case may be, and has the requisite organizational power and authority to own, lease and, to the extent applicable, operate its properties and to carry on its business as it is now being conducted. Each Sutherland Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, operated or leased by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

(c)           Section 5.1(c) of the Sutherland Disclosure Letter sets forth a true and complete list of the Sutherland Subsidiaries and their respective jurisdictions of incorporation or organization, as the case may be, the jurisdictions in which Sutherland and the Sutherland Subsidiaries are qualified or licensed to do business, and the type of and percentage of interest held, directly or indirectly, by Sutherland in each Sutherland Subsidiary, including a list of each Sutherland Subsidiary that is a Qualified REIT Subsidiary or a Taxable REIT Subsidiary and each Sutherland Subsidiary that is an entity taxable as a corporation which is neither a Qualified REIT Subsidiary nor a Taxable REIT Subsidiary.

(d)          Neither Sutherland nor any Sutherland Subsidiary directly or indirectly owns any equity interest or investment (whether equity or debt) in any Person (other than in the Sutherland Subsidiaries and investments in short-term investment securities).

(e)          Sutherland has made available to Company complete and correct copies of the Sutherland Governing Documents. Each of Sutherland and the Sutherland Operating Partnership is in compliance with the terms of its Sutherland Governing Documents in all material respects. True and complete copies of Sutherland’s and the Sutherland Operating Partnership’s minute books, as applicable, have been made available by Sutherland to Company.

(f)          Sutherland has not exempted any “Person” from the “Aggregate Stock Ownership Limit,” the “Common Stock Ownership Limit” or the “Preferred Stock Ownership Limit” or established or increased an “Excepted Holder Limit,” as such terms are defined in the Sutherland Charter, which exemption or Excepted Holder Limit is currently in effect.

Section 5.2            Authority .

(a)          Each of the Sutherland Parties has the requisite corporate or limited partnership power and authority, as applicable, to execute and deliver this Agreement, to perform its obligations hereunder and, subject to receipt of the Sutherland Stockholder Approval, to consummate the transactions contemplated by this Agreement, including the Mergers. The execution and delivery of this Agreement by each of the Sutherland Parties and the consummation by the Sutherland Parties of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate and limited partnership action, and no other corporate or limited partnership proceedings on the part of the Sutherland Parties are necessary to authorize this Agreement or the Mergers or to consummate the other transactions contemplated by this Agreement, subject, (i) with respect to the Sutherland Merger, to receipt of the Sutherland Stockholder Approval, to the filing of the Articles of Merger with, and acceptance for record of the Articles of Merger by, the SDAT, and to the filing of the Sutherland Certificate of Merger with, and acceptance for record of the Sutherland Certificate of Merger by, the DE SOS, and (ii) with respect to the Partnership Merger, to the filing of the Partnership Certificate of Merger with, and acceptance for record of the Partnership Certificate of Merger by, the DE SOS.

(b)          This Agreement has been duly executed and delivered by the Sutherland Parties, and assuming due authorization, execution and delivery by the Company Parties, constitutes a legally valid and binding obligation of the Sutherland Parties enforceable against the Sutherland Parties in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).

(c)          The Sutherland Board has (i) determined that the terms of this Agreement, the Mergers, the Merger Consideration and the other transactions contemplated by this Agreement are fair to and in the best interests of the holders of Sutherland Common Stock and Sutherland OP Units, (ii) approved, authorized, adopted and declared advisable this Agreement and the consummation of the Mergers and the other transactions contemplated by this Agreement, (iii) directed that this Agreement be submitted to a vote of the holders of Sutherland Common Stock and (iv) resolved to recommend that holders of Sutherland Common Stock vote in favor of approval of the Sutherland Merger and this Agreement (such recommendations, the “ Sutherland Board Recommendation ”), which resolutions remain in full force and effect and have not been subsequently rescinded, modified or withdrawn in any way, except as may be permitted after the date hereof by Section 7.3 .

Section 5.3            Approval Required . The Sutherland Stockholder Approval is the only vote of the holders of securities of Sutherland or the Sutherland Operating Partnership required to approve this Agreement, the Mergers and the other transactions contemplated by this Agreement.

Section 5.4            No Conflict; Required Filings and Consents .

(a)          The execution and delivery of this Agreement by each of the Sutherland Parties do not, and the performance of this Agreement and its obligations hereunder will not, (i) assuming receipt of the Sutherland Stockholder Approval, conflict with or violate any provision of (A) the Sutherland Governing Documents or (B) any equivalent organizational or governing documents of any other Sutherland Subsidiary, (ii) assuming that all consents, approvals, authorizations and permits described in Section 5.4(b) have been obtained, all filings and notifications described in Section 5.4(b) have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to any Sutherland Party or any other Sutherland Subsidiary or by which any property or asset of any Sutherland Party or any other Sutherland Subsidiary is bound, or (iii) require any consent or approval (except as contemplated by Section 5.4(b) ) under, result in any breach of any obligation or any loss of any benefit or material increase in any cost or obligation of any Sutherland Party or any other Sutherland Subsidiary under, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to any other Person any right of termination, acceleration or cancellation (with or without notice or the lapse of time or both) of, or give rise to any right of purchase, first offer or forced sale under or result in the creation of a Lien on any property or asset of any Sutherland Party or any other Sutherland Subsidiary pursuant to, any Contract or Sutherland Permit to which any Sutherland Party or any other Sutherland Subsidiary is a party, except, as to clauses (ii) and (iii) above, for any such conflicts, violations, breaches, defaults or other occurrences which, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

(b)          The execution and delivery of this Agreement by each of the Sutherland Parties do not, and the performance of this Agreement by each of the Sutherland Parties will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Authority, except (i) the filing with the SEC of (A) the Company Proxy Statement, (B) the Form S-4 and the declaration of effectiveness of the Form S-4, and (C) such reports under, and other compliance with, the Exchange Act and the Securities Act as may be required in connection with this Agreement and the transactions contemplated by this Agreement, (ii) as may be required under the rules and regulations of the NYSE, (iii) the filing of the Articles of Merger with, and the acceptance for record of the Articles of Merger by, the SDAT pursuant to the MGCL, (iv) the filing of the Sutherland Certificate of Merger with, and the acceptance for record of the Sutherland Certificate of Merger by, the DE SOS pursuant to the DLLCA, (v) the filing of the Partnership Certificate of Merger with, and the acceptance for record of the Partnership Certificate of Merger by, the DE SOS pursuant to the DRULPA, (vi) such filings and approvals as may be required by any applicable state securities or “blue sky” Laws, (vii) the consents, authorizations, orders or approvals of each Governmental Authority or Agency listed in Section 8.1(a) of the Sutherland Disclosure Letter and (viii) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications which, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

Section 5.5            Capital Structure .

(a)          The authorized capital stock of Sutherland consists of 450,000,000 shares of Sutherland Common Stock, and 50,000,000 shares of preferred stock, $0.01 par value per share. At the close of business on February 29, 2016, (i) 30,804,029 shares of Sutherland Common Stock were issued and outstanding and (ii) 125 shares of the 12.5% Series A Cumulative Non-Voting Preferred Stock of Sutherland (“ Sutherland Preferred Stock ”) were issued and outstanding, and (iii) 2,714,361 shares of Sutherland Common Stock were reserved for issuance upon redemption of Sutherland OP Units. All of the outstanding shares of capital stock of Sutherland are duly authorized, validly issued, fully paid and nonassessable and were issued in compliance with applicable securities Laws. Except as set forth in this Section 5.5 , there is no other outstanding capital stock of Sutherland.

(b)          At the close of business on February 29, 2016, (i) 33,518,390 Sutherland OP Units were issued and outstanding, of which 2,714,361 Sutherland OP Units were held by limited partners other than Sutherland and (ii) one (1) Class A Special Unit (the “ Sutherland OP Special Unit ”) was issued and outstanding and was held by Waterfall. Section 5.5(b) of the Sutherland Disclosure Letter sets forth a list of all of the partners of Sutherland Operating Partnership as of the date hereof, together with the number of Sutherland OP Units held by each such partner. All the Sutherland OP Units held by Sutherland are directly owned by Sutherland, free and clear of all Liens other than Permitted Liens and free of preemptive rights. All of the Sutherland OP Units and the Sutherland OP Special Unit are duly authorized and validly issued and were issued in compliance with applicable securities Laws.

(c)          All of the outstanding shares of capital stock of each of the Sutherland Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Sutherland Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All shares of capital stock of (or other ownership interests in) each of the Sutherland Subsidiaries which may be issued upon exercise of outstanding options or exchange rights are duly authorized and, upon issuance will be validly issued, fully paid and nonassessable. Sutherland or the Sutherland Operating Partnership owns, directly or indirectly, all of the issued and outstanding capital stock and other ownership interests of each of the Sutherland Subsidiaries, free and clear of all Liens other than Permitted Liens and free of preemptive rights.

(d)          There are no bonds, debentures, notes or other Indebtedness having general voting rights (or convertible into securities having such rights) (“ Sutherland Voting Debt ”) of Sutherland or any Sutherland Subsidiary issued and outstanding. Except for the Sutherland OP Units, there are no outstanding subscriptions, securities options, warrants, calls, rights, profits interests, stock appreciation rights, phantom stock, convertible securities, preemptive rights, anti-dilutive rights, rights of first refusal or other similar rights, agreements, arrangements, undertakings or commitments of any kind to which Sutherland or any of the Sutherland Subsidiaries is a party or by which any of them is bound obligating Sutherland or any of the Sutherland Subsidiaries to (i) issue, transfer or sell or create, or cause to be issued, transferred or sold or created any additional shares of capital stock or other equity interests or phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any equity security of Sutherland or any Sutherland Subsidiary or securities convertible into or exchangeable for such shares or equity interests, (ii) issue, grant, extend or enter into any such subscriptions, options, warrants, calls, rights, profits interests, stock appreciation rights, phantom stock, convertible securities or other similar rights, agreements, arrangements, undertakings or commitments or (iii) redeem, repurchase or otherwise acquire any such shares of capital stock, Sutherland Voting Debt or other equity interests.

(e)          Neither Sutherland nor any Sutherland Subsidiary is a party to or bound by any Contracts concerning the voting (including voting trusts and proxies) of any capital stock of Sutherland or any of the Sutherland Subsidiaries. Neither Sutherland nor any Sutherland Subsidiary has granted any registration rights on any of its capital stock other than as set forth in Section 5.5(e) of the Sutherland Disclosure Letter. No Sutherland Common Stock is owned by any Sutherland Subsidiary.

(f)          Sutherland does not have a “poison pill” or similar stockholder rights plan.

(g)          All dividends or other distributions on the shares of Sutherland Common Stock or Sutherland OP Units and any material dividends or other distributions on any securities of any Sutherland Subsidiary which have been authorized or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).

Section 5.6            SEC Documents; Financial Statements; Internal Controls; Off Balance Sheet Arrangements; Investment Company Act; Anti-Corruption Laws .

(a)          As of their respective filing dates (or the date of their most recent amendment, supplement or modification, in each case, to the extent filed and publicly available prior to the date of this Agreement), the Sutherland SEC Documents did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading.

(b)          Sutherland has made available to Company the consolidated balance sheet and statements of income, changes in equity and cash flows, together with the notes thereto, of Sutherland and the Sutherland Subsidiaries as of the and for the fiscal years ended December 31, 2013, December 31, 2014 and December 31, 2015, each reported on by Deloitte & Touche LLP, as independent public accountants of Sutherland (collectively, the “ Sutherland Financial Statements ”). The Sutherland Financial Statements (i) have been prepared from, are in accordance with, and accurately reflect the books and records of Sutherland and Sutherland Subsidiaries in all material respects, (ii) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto, or, in the case of the unaudited financial statements, for normal and recurring year-end adjustments) and (iii) fairly present, in all material respects (subject, in the case of unaudited financial statements, for normal and recurring year-end adjustments, none of which is material), the consolidated financial position of Sutherland and the Sutherland Subsidiaries, taken as a whole, as of their respective dates and the consolidated statements of income and the consolidated cash flows of Sutherland and the Sutherland Subsidiaries for the periods presented therein. None of Sutherland or any Sutherland Subsidiary is subject to the periodic reporting requirements of the Exchange Act.

(c)          Sutherland and Sutherland Subsidiaries have designed and maintained a system of internal control over financial reporting sufficient to provide reasonable assurances (i) regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, (ii) that transactions are executed in accordance with management’s general or specific authorizations, (iii) that transactions are recorded as necessary to permit preparation of financial statements and to maintain asset accountability, (iv) that access to assets is permitted only in accordance with management’s general or specific authorization, (v) that the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (vi) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Sutherland has disclosed to Sutherland’s auditors and audit committee (and made summaries of such disclosures available to Company) (1) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect in any material respect Sutherland’s ability to record, process, summarize and report financial information and (2) any fraud, to the Knowledge of Sutherland, whether or not material, that involves management or other employees who have a significant role in internal control over financial reporting.

(d)          The Sutherland Parties are not, and none of the other Sutherland Subsidiaries are, a party to, and none of the Sutherland Parties or any of the other Sutherland Subsidiaries have any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract, including any Contract relating to any transaction or relationship between or among any Sutherland Parties and any other Sutherland Subsidiary, on the one hand, and any unconsolidated Affiliate of a Sutherland Party or any other Sutherland Subsidiary, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC), where the result, purpose or effect of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, any Sutherland Party, any other Sutherland Subsidiary or such Sutherland Party’s or Sutherland Subsidiary’s audited financial statements.

(e)          None of the Sutherland Parties or any other Sutherland Subsidiary is required to be registered as an investment company under the Investment Company Act.

(f)          Neither Sutherland nor any Sutherland Subsidiary nor, to the Knowledge of Sutherland, any director, officer or Representative of Sutherland or any Sutherland Subsidiary has (i) used any corporate funds for any unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (ii) made any unlawful payment to any foreign or domestic government official or employee or (iii) made any unlawful bribe, rebate, payoff, kickback or other unlawful payment to any foreign or domestic government official or employee, in each case, in violation in any material respect of any applicable Anti-Corruption Law. Neither Sutherland nor any Sutherland Subsidiary has received any written communication that alleges that Sutherland or any Sutherland Subsidiary, or any of their respective Representatives, is, or may be, in violation of, or has, or may have, any liability under, any Anti-Corruption Law.

Section 5.7            Absence of Certain Changes or Events . Since December 31, 2015 through the date of this Agreement, (a) each Sutherland Party and each other Sutherland Subsidiary has conducted its business in all material respects in the ordinary course of business consistent with past practice, (b) no Sutherland Party or Sutherland Subsidiary has taken any action that would have been prohibited by Section 6.2 (b) (Conduct of the Business of Sutherland) if taken from and after the date of this Agreement and (c) there has not been any Sutherland Material Adverse Effect or any event, circumstance, change, effect, development, condition or occurrence that, individually or in the aggregate with all other events, circumstances, changes, effects, developments, conditions or occurrences, would reasonably be expected to have a Sutherland Material Adverse Effect.

Section 5.8            No Undisclosed Liabilities . Except (a) as disclosed, reflected or reserved against on the balance sheet of Sutherland dated as of December 31, 2015 (including the notes thereto), (b) for liabilities or obligations incurred in connection with the transactions contemplated by this Agreement and (c) for liabilities or obligations incurred in the ordinary course of business consistent with past practice since December 31, 2015, neither Sutherland nor any Sutherland Subsidiary has any liabilities or obligations (whether accrued, absolute, contingent or otherwise) that either alone or when combined with all other liabilities of a type not described in clauses (a), (b) or (c) above, has had, or would reasonably be expected to have, a Sutherland Material Adverse Effect.

Section 5.9            Permits; Compliance with Law .

(a)          Except for the authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances that are the subject of Section 5.11 , Section 5.15 and Section 5.16 , which are addressed solely in those Sections, each of the Sutherland Parties and each other Sutherland Subsidiary is in possession of all authorizations, licenses, permits, certificates, approvals, variances, exemptions, orders, franchises, certifications and clearances of any Governmental Authority necessary for Sutherland and each Sutherland Subsidiary to own, lease and, to the extent applicable, operate its properties or to carry on its respective business substantially as they are being conducted as of the date hereof (the “ Sutherland Permits ”), and all such Sutherland Permits are valid and in full force and effect, except where the failure to be in possession of, or the failure to be valid or in full force and effect of, any of the Sutherland Permits, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. No event has occurred with respect to any of the Sutherland Permits which permits, or after notice or lapse of time or both would permit, revocation or termination thereof or would result in any other material impairment of the rights of the holder of any such Sutherland Permits. To the Knowledge of Sutherland, there is not pending any applicable petition, objection or other pleading with any Governmental Authority having jurisdiction or authority over the operations of Sutherland or the Sutherland Subsidiaries that impairs the validity of any Sutherland Permit or which would reasonably be expected, if accepted or granted, to result in the revocation of any Sutherland Permit.

(b)          No Sutherland Party or any other Sutherland Subsidiary is, and for the past three (3) years no Sutherland Party or any other Sutherland Subsidiary has been, in conflict with, or in default or violation of (i) any Law applicable to the Sutherland Parties or any other Sutherland Subsidiary or by which any property or asset of the Sutherland Parties or any other Sutherland Subsidiary is bound (except for compliance with Laws addressed in Section 5.11 , Section 5.12 , Section 5.13 , Section 5.15 or Section 5.16 which are solely addressed in those Sections), or (ii) any Sutherland Permits (except for the Sutherland Permits addressed in Section 5.11 , Section 5.15 or Section 5.16 which are solely addressed in those Sections), except, in each case, for any such conflicts, defaults or violations that, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

Section 5.10          Litigation . Other than as disclosed in Section 5.10 of the Sutherland Disclosure Letter, (a) there is no material action, suit, proceeding or investigation to which Sutherland or any Sutherland Subsidiary is a party (either as plaintiff or defendant) pending or, to the Knowledge of Sutherland, threatened before any Governmental Authority, and, to the Knowledge of Sutherland, there is no basis for any such action, suit, proceeding or investigation; (b) none of Sutherland and the Sutherland Subsidiaries has been permanently or temporarily enjoined by any Order, judgment or decree of any Governmental Authority from engaging in or continuing to conduct the business of Sutherland or the Sutherland Subsidiaries; (c) no Order of any Governmental Authority has been issued in any proceeding to which Sutherland or any of the Sutherland Subsidiaries is or was a party, or, to the Knowledge of Sutherland, in any other proceeding, that enjoins or requires Sutherland or any of the Sutherland Subsidiaries to take action of any kind with respect to its businesses, assets or properties; and (d) since January 1, 2016, none of Sutherland, any Sutherland Subsidiary or any Representative of the foregoing has received or made any settlement offer for any material Action to which Sutherland or any Sutherland Subsidiary is a party or potentially could be a party (in each case, either as plaintiff or defendant), other than settlement offers that do not exceed $500,000 individually.

Section 5.11          Mortgage Business .

(a)          Sutherland has not conducted directly, and no Sutherland Subsidiary other than the Mortgage Company Subsidiaries and the Mortgage Company Investor has conducted, Sutherland's business of origination, acquisition, financing, sale, servicing and management of Mortgage Loans in any material respect. Each Mortgage Company Subsidiary has complied in all material respects with, and all documentation prepared or used by such Mortgage Company Subsidiary in connection with the origination, processing, underwriting and credit approval of any Mortgage Loan originated or purchased by such Mortgage Company Subsidiary, and has satisfied, in all material respects, (i) all applicable Laws and Applicable Requirements with respect to the origination, insuring, purchase, sale, or pooling of such Mortgage Loans and (ii) the requirements of each Loan Sale Agreement. Each Mortgage Company Subsidiary has complied in all material respects with (i) all applicable Laws and Applicable Requirements with respect to the Servicing of such Mortgage Loans and (ii) the requirements of each Servicing Agreement with respect to any Mortgage Loan.

(b)          No Agency or other Investor has (i) claimed in writing that any Mortgage Company Subsidiary has violated or has not complied in any material respect with the applicable underwriting standards with respect to Mortgage Loans sold by such Mortgage Company Subsidiary to such Agency or other Investor, (ii) imposed in writing material restrictions on the activities (including commitment authority) of or such Mortgage Company Subsidiary as a seller or servicer for such Agency or Investor, or (iii) indicated in writing to any Mortgage Company Subsidiary that it has terminated or intends to terminate its seller and/or servicer relationship (including any Loan Sale Agreement or Servicing Agreement) with such Mortgage Company Subsidiary for failure to comply with applicable Laws or the applicable Loan Sale Agreement, Servicing Agreement rules, regulations, guidelines, handbooks and other requirements of such Agency or other Investor.

(c)           Section 5.11(c) of the Sutherland Disclosure Letter sets forth a complete, true and correct list of all Mortgage Loans held by Sutherland or any Sutherland Subsidiary as of December 31, 2015, and listing each Mortgage Loan that as of such date, was a non-performing loan or in foreclosure, including with a Mortgagor subject to bankruptcy. To the Knowledge of Sutherland, the information relating to each Mortgage Loan set forth in Section 5.11(c) of the Sutherland Disclosure Letter is true and correct in all material respects.

(d)           Section 5.11(d) of the Sutherland Disclosure Letter sets forth a complete, true and correct list of Serviced Loans as of December 31, 2015 and the related Servicing Agreement. All of the Servicing Agreements under which any Mortgage Company Subsidiary Services any Mortgage Loans are in full force and effect, and are unencumbered by Liens other than Permitted Liens, except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. To the Knowledge of Sutherland, no event of default (or other similar termination event) or event that, with notice or lapse of time or both, is reasonably likely to become an event of default (or other similar termination event), exists under any of the Servicing Agreements under which any Mortgage Company Subsidiary Services any Mortgage Loans, except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

(e)          The Serviced Loans have been and are so Serviced in accordance with Accepted Servicing Practices or other standards set forth in the related Servicing Agreement, and with the other requirements of the applicable Servicing Agreement, except for immaterial failures to comply with such requirements.

(f)           Section 5.11(f) of the Sutherland Disclosure Letter sets forth each approval from any Agency for the sale, origination, lending or Servicing of Mortgage Loans, participation interests in Mortgage Loans and related assets held by each Mortgage Company Subsidiary. Each Mortgage Company Subsidiary is in good standing and is in compliance in all material respects with all applicable eligibility requirements for each approval set forth on Section 5.11(f) of the Sutherland Disclosure Letter.

(g)          No Mortgage Company Subsidiary has been threatened with any revocation, suspension or material limitation of any approval as a GNMA issuer, Fannie Mae Seller-Servicer, Freddie Mac Seller-Servicer, FHA Non-Supervised Lender, USDA approved lender, VA approved lender or SBA approved lender, as applicable.

(h)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, to the Knowledge of Sutherland, no audit or investigation by a Governmental Authority or Investor is pending or threatened against any Mortgage Company Subsidiary or Mortgage Company Investor that is reasonably likely to result in:

(i)          a claim of a failure to comply with applicable Laws,

(ii)         rescission of any insurance or guaranty contract or other Contract of such Mortgage Company Subsidiary or Mortgage Company Investor,

(iii)        payment by such Mortgage Company Subsidiary or Mortgage Company Investor of a penalty to any Governmental Authority or Investor, or

(iv)        revocation, suspension or material limitation of any Sutherland Permit.

(i)          There is no pending or, to the Knowledge of Sutherland, threatened, cancellation or reduction of any Loan Sale Agreement to which any Mortgage Company Subsidiary or Mortgage Company Investor is a party and the obligations of each Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, under each Loan Sale Agreement and Servicing Agreement are being performed by each Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, and, to the Knowledge of Sutherland, the other parties to each Loan Sale Agreement and Servicing Agreement, in each case, in accordance with its terms in all material respects. There is no material breach by any Mortgage Company Subsidiary or Mortgage Company Investor under any Loan Sale Agreement. Except for claims that have been fully resolved and released, no third party has, to its Knowledge, (i) alleged a breach of any representation, warranty or covenant made by Sutherland or any Mortgage Company Subsidiary or Mortgage Company Investor with respect to any Mortgage Loan for which a repurchase of, or any indemnity obligation relating to, such Mortgage Loan could be required or (ii) exercised or, to the Knowledge of Sutherland, is threatening to exercise its contractual right against any Mortgage Company Subsidiary or Mortgage Company Investor arising out of a breach of any Loan Sale Agreement or Servicing Agreement, including to require any such Mortgage Company Subsidiary or Mortgage Company Investor to repurchase any Company Loan or Agency Serviced Loan from such third party, indemnify such third party or other Persons or make a make-whole or other similar payment to such third party or other Persons. All repurchase, indemnification and make-whole (or other similar payments) claims asserted under any Loan Sale Agreement or Servicing Agreement against Sutherland or any Mortgage Company Subsidiary or Mortgage Company Investor due to a breach of any representation, warranty or covenant since January 1, 2013 are set forth on Section 5.11(i) of the Sutherland Disclosure Letter.

(j)          With respect to Mortgage Loans that were originated by a Mortgage Company Subsidiary or Mortgage Company Investor, each Sutherland Loan and Agency Serviced Loan was underwritten and originated, and the Mortgage Loan Documents maintained by each Mortgage Company Subsidiary with respect thereto are being maintained in all material respects by such Mortgage Company Subsidiary in compliance with all applicable Laws and, if applicable, the requirements of the Person acquiring such Sutherland Loan or Agency Serviced Loan (including any Investor), the applicable Agency, or the insurer or guaranty (if any) insuring or guaranteeing such Sutherland Loan or Agency Serviced Loan in effect and applicable at the time such insurance or guaranty was obtained, except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect.

(k)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, (i) as of the time it was made or purchased by a Mortgage Company Subsidiary, each Sutherland Loan and Agency Serviced Loan was evidenced by a Mortgage Note and was duly secured by a valid, subsisting, enforceable and perfected first Lien or subordinated Lien on the related Mortgaged Property, in each case, on such forms and with such terms as complied in all material respects with all Applicable Requirements, (ii) each Mortgage related to a Sutherland Loan or Agency Serviced Loan created an ownership interest in an estate in fee simple in the Mortgaged Property, (iii) each Mortgage Note related to a Sutherland Loan or Agency Serviced Loan and the related Mortgage is genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting generally the enforcement of creditors’ rights whether considered in a proceeding at law or at equity, and (iv) no Sutherland Loan or Agency Serviced Loan is subject to any rights of rescission, reformation, set-off, counterclaim or defense of usury, and no such right of rescission, reformation, set-off, counterclaim, or defense has been asserted with respect thereto, nor will the operation of any of the terms of the applicable Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either such Mortgage Note or such Mortgage unenforceable by the lender, in whole or in part, or subject to any right of rescission, reformation, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, reformation, set-off, counterclaim, or defense has been asserted with respect thereto.

(l)          All buildings or other customary insured improvements upon each Mortgaged Property related to a Sutherland Loan or Agency Serviced Loan are insured by a qualified insurer acceptable under any Guide or such other applicable Program Lender guidelines against loss by fire, flood hazards of extended coverage and such other hazards as are provided for in a Guide or such other applicable Program Lender guidelines, pursuant to insurance policies conforming to Applicable Requirements, and no payments of mortgage insurance premiums are past due thereunder.

(m)          With respect to Sutherland Loans originated by a Mortgage Company Subsidiary and Agency Serviced Loans, each Mortgage Company Subsidiary has complied in all material respects with the requirements of any applicable Law, including usury, truth in lending, real estate settlement procedures, consumer credit protection (including uniform consumer credit code laws), predatory and abusive lending laws, equal credit opportunity, ability-to-repay/qualified mortgage rules promulgated under Regulation Z, fair housing and disclosure laws or unfair and deceptive practices laws, unfair collection practices, CFPB servicing protocols, and fair credit reporting, applicable to the origination and servicing thereof. Each Sutherland Loan originated by a Mortgage Company Subsidiary and Agency Serviced Loan was underwritten, originated and Serviced in compliance in all material respects with applicable Law, and was not (i) a “high cost” loan under the Home Ownership and Equity Protection Act of 1994, as amended, or (ii)  a “high cost,” “threshold,” “covered,” or “predatory” loan under any other applicable Law (or a similarly classified loan using different terminology under a law, regulation or ordinance imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees).

(n)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, (i) each Mortgage related to a Sutherland Loan was properly recorded and was a valid, perfecting and enforceable either first Lien and first priority security interest or subordinated Lien and subordinated priority security interest with respect to each Sutherland Loan on the Mortgaged Property, including all improvements on the Mortgaged Property, (ii) any Mortgage Loan Document related to and delivered in connection with the Sutherland Loans established and created a valid, existing and enforceable (A) first Lien and first priority security interest with respect to each first Lien Sutherland Loan, or (B) subordinated Lien and subordinated priority security interest with respect to each subordinated Lien Sutherland Loan, in either case, on the property described therein, and (iii) each Mortgage Note related to a Sutherland Loan is not and has not been secured by any collateral pledged account or other security other than the Lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage referred to in this paragraph.

(o)          (i) Each Mortgage Note and each Mortgage related to a Sutherland Loan originated by a Mortgage Company Subsidiary have been duly and properly executed by the parties thereto, and (ii) the borrower under each Mortgage related to a Sutherland Loan originated by a Mortgage Company Subsidiary has received all material disclosure materials required by applicable Law as of the origination date of such Mortgage with respect to the making of fixed or adjustable rate mortgage loans, as applicable, in each case, except for immaterial failures to comply with such requirements.

(p)          With respect to Sutherland Loans originated by a Mortgage Company Subsidiary and Agency Serviced Loans, the relevant files are complete and accurate, in all material respects, and are being maintained in all material respects in accordance with all Applicable Requirements.

(q)          No fraud, with respect to a Sutherland Loan or an Agency Serviced Loan, has taken place (i) on the part of any Mortgage Company Subsidiary or any of its respective employees or, to the Knowledge of Sutherland, on the part of Mortgagor, or any other Person, including any servicer, any appraiser, escrow agent, broker or correspondent, closing or settlement agent, closing attorney, title company or any other party involved in the origination or servicing of the Sutherland Loan or in the determination of the value of the Mortgaged Property or the sale of the Mortgaged Property, or (ii) that would impair in any way the rights of Sutherland, Company or any Mortgage Company Subsidiary in the Sutherland Loan or Mortgaged Property or that violated applicable Law.

(r)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, each Mortgage Company Subsidiary or Mortgage Company Investor, with respect to each Mortgage Loan owned by such Mortgage Company Subsidiary or Mortgage Company Investor as of the origination date, or MERS as nominee for such Mortgage Company Subsidiary or Mortgage Company Investor, with respect to each Mortgage Loan owned by any Mortgage Company Subsidiary or Mortgage Company Investor as of the purchase date, is the sole owner of record and holder of each Mortgage Loan and the related Mortgage Note and the Mortgage are not assigned or pledged to any other Person, and each such Mortgage Company Subsidiary or Mortgage Company Investor, as applicable, has good, indefeasible and marketable title thereto and has full right and authority perform the transactions contemplated by this Agreement.

(s)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, each Mortgage and related Mortgage Note owned by any Mortgage Company Subsidiary or Mortgage Company Investor contain customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby (such as for the enforcement of the Lien against the Mortgaged Property), including, (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure thereon, or trustee’s sale of, the Mortgaged Property pursuant to proper procedures, the holder of the Mortgage Loan will be able to deliver good and marketable title to the Mortgaged Property.

(t)          Except for claims that have been fully resolved and released, no Mortgage Company Subsidiary or Mortgage Company Investor has asserted any material contractual right against, nor, to the Knowledge of Sutherland, do facts or circumstances exist that would constitute a material breach by any Person (other than such Mortgage Company Subsidiary or Mortgage Company Investor) under any Loan Purchase Agreement. All repurchase, indemnification and make-whole (or other similar payments) claims asserted under any Loan Purchase Agreement by Sutherland or any Mortgage Company Subsidiary or Mortgage Company Investor since January 1, 2013 are set forth on Section 5.11(t) of the Sutherland Disclosure Letter.

Section 5.12          Taxes .

(a)          Each Sutherland Party and each other Sutherland Subsidiary has timely filed with the appropriate Governmental Authority all United States federal income Tax Returns and all other material Tax Returns required to be filed, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct in all material respects. Each Sutherland Party and each other Sutherland Subsidiary has duly paid (or there has been paid on their behalf), or made adequate provisions in accordance with GAAP for, all material Taxes required to be paid by them, whether or not shown on any Tax Return. True and materially complete copies of all United States federal income Tax Returns that have been filed with the IRS by Sutherland and each Sutherland Subsidiary with respect to the taxable years ending on or after Sutherland’s formation have been made available to Company.

(b)          Sutherland (i) for all taxable years commencing with Sutherland’s year ending December 31, 2013 and through December 31, 2015, has been subject to taxation as a REIT and has satisfied all requirements to qualify as a REIT for such years; (ii) has operated since January 1, 2016 to the date hereof, in a manner consistent with the requirements for qualification and taxation as a REIT; (iii) intends to continue to operate in such a manner as to qualify as a REIT for its taxable year that will include the day of the Sutherland Merger; and (iv) has not taken or omitted to take any action that could reasonably be expected to result in a challenge by the IRS or any other Governmental Authority to its status as a REIT, and no such challenge is pending or threatened, to the Knowledge of Sutherland. No Sutherland Subsidiary is a corporation for United States federal income tax purposes, other than a corporation that qualifies as a Qualified REIT Subsidiary or as a Taxable REIT Subsidiary. Sutherland’s dividends paid deduction, within the meaning of Section 561 of the Code, for each taxable year, taking into account any dividends subject to Sections 857(b)(8) or 858 of the Code, has not been less than the sum of (i) Sutherland’s REIT taxable income, as defined in Section 857(b)(2) of the Code, determined without regard to any dividends paid deduction for such year and (ii) Sutherland’s net capital gain for such year.

(c)          (i) There are no audits, investigations by any Governmental Authority or other proceedings pending or, to the Knowledge of Sutherland, threatened with regard to any material Taxes or Tax Returns of any Sutherland Party or any other Sutherland Subsidiary; (ii) no material deficiency for Taxes of any Sutherland Party or any other Sutherland Subsidiary has been claimed, proposed or assessed in writing or, to the Knowledge of Sutherland, threatened, by any Governmental Authority, which deficiency has not yet been settled except for such deficiencies which are being contested in good faith or with respect to which the failure to pay, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect; (iii) no Sutherland Party has, nor has any other Sutherland Subsidiary, waived any statute of limitations with respect to the assessment of material Taxes or agreed to any extension of time with respect to any material Tax assessment or deficiency for any open tax year; (iv) no Sutherland Party is, nor is any other Sutherland Subsidiary, currently the beneficiary of any extension of time within which to file any material Tax Return; and (v) no Sutherland Party has, nor has any of the other Sutherland Subsidiaries, entered into any “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law).

(d)          Each Sutherland Subsidiary that is a partnership, joint venture or limited liability company and that has not elected to be a Taxable REIT Subsidiary has been since its formation treated for United States federal income tax purposes as a partnership, disregarded entity, or Qualified REIT Subsidiary, as the case may be, and not as a corporation or an association taxable as a corporation whose separate existence is respected for federal income tax purposes.

(e)          None of the Sutherland Parties or any of the other Sutherland Subsidiaries hold any asset the disposition of which would be subject to (or to rules similar to) Section 1374 of the Code.

(f)          Since its inception, the Sutherland Parties and the other Sutherland Subsidiaries have not incurred (i) any material liability for Taxes under Sections 857(b)(1), 857(b)(4), 857(b)(5), 857(b)(6)(A), 857(b)(7), 860(c) or 4981 of the Code which have not been previously paid, (ii) any liability for Taxes under Sections 857(b)(5) (for income test violations), 856(c)(7)(C) (for asset test violations), or 856(g)(5)(C) (for violations of other qualification requirements applicable to REITs) and (iii) the Sutherland Parties have not, and none of the other Sutherland Subsidiaries have, incurred any material liability for Tax other than (A) in the ordinary course of business consistent with past practice, or (B) transfer or similar Taxes arising in connection with sales of property. No event has occurred, and to the Knowledge of Sutherland no condition or circumstances exists, which presents a material risk that any material liability for Taxes described clause (i) or (iii) of the preceding sentence or any liability for Taxes described in clause (ii) of the preceding sentence will be imposed upon any Sutherland Party or any other Sutherland Subsidiary.

(g)          The Sutherland Parties and the other Sutherland Subsidiaries have complied, in all material respects, with all applicable Laws relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to Sections 1441, 1442, 1445, 1446 and 3402 of the Code or similar provisions under any state and foreign Laws) and have duly and timely withheld and, in each case, have paid over to the appropriate taxing authorities all material amounts required to be so withheld and paid over on or prior to the due date thereof under all applicable Laws.

(h)          There are no Sutherland Tax Protection Agreements (as hereinafter defined) in force at the date of this Agreement, and, as of the date of this Agreement, no person has raised in writing, or to the Knowledge of Sutherland threatened to raise, a material claim against any Sutherland Party or any other Sutherland Subsidiary for any breach of any Sutherland Tax Protection Agreements. As used herein, “Sutherland Tax Protection Agreements” means any written agreement to which any Sutherland Party or any other Sutherland Subsidiary is a party pursuant to which: (i) any liability to holders of limited partnership interests in a Sutherland Subsidiary Partnership (as hereinafter defined) relating to Taxes may arise, whether or not as a result of the consummation of the transactions contemplated by this Agreement; and/or (ii) in connection with the deferral of income Taxes of a holder of limited partnership interests or limited liability company in a Sutherland Subsidiary Partnership, any Sutherland Party or any other Sutherland Subsidiary has agreed to (A) maintain a minimum level of debt, continue a particular debt or provide rights to guarantee debt, (B) retain or not dispose of assets, (C) make or refrain from making Tax elections, and/or (D) only dispose of assets in a particular manner. As used herein, “Sutherland Subsidiary Partnership” means a Sutherland Subsidiary that is a partnership for United States federal income tax purposes.

(i)          There are no Tax Liens upon any property or assets of any Sutherland Party or any other Sutherland Subsidiary except Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.

(j)          There are no Tax allocation or sharing agreements or similar arrangements with respect to or involving any Sutherland Party or any other Sutherland Subsidiary, and after the Closing Date no Sutherland Party shall, nor shall any other Sutherland Subsidiary, be bound by any such Tax allocation agreements or similar arrangements or have any liability thereunder for amounts due in respect of periods prior to the Closing Date.

(k)          No Sutherland Party has, nor has any other Sutherland Subsidiary, requested or received any written ruling of a Governmental Authority or entered into any written agreement with a Governmental Authority with respect to any Taxes, and no Sutherland Party or any other Sutherland Subsidiary is subject to written ruling of a Governmental Authority.

(l)          No Sutherland Party or any other Sutherland Subsidiary (i) has been a member of an affiliated group filing a consolidated federal income Tax or (ii) has any liability for the Taxes of any Person (other than any Sutherland Subsidiary) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by Contract, or otherwise.

(m)          No Sutherland Party or any other Sutherland Subsidiary has participated in any “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).

(n)          No Sutherland Party or any other Sutherland Subsidiary has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with transactions contemplated by this Agreement.

(o)          No written power of attorney that has been granted by any Sutherland Party or any other Sutherland Subsidiary (other than to Sutherland or a Sutherland Subsidiary) currently is in force with respect to any matter relating to Taxes.

(p)          Neither Sutherland nor any Sutherland Subsidiary has taken any action or failed to take any action which action or failure would reasonably be expected to jeopardize, nor to the Knowledge of Sutherland is there any other fact or circumstance that could reasonably be expected to prevent, the Sutherland Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

Section 5.13          Benefit Plans .

(a)           Section 5.13(a) of the Sutherland Disclosure Letter contains a list of each material (i) “employee benefit plan” (within the meaning of Section 3(3) of ERISA), whether or not subject to ERISA, (ii) severance, change in control and employment plan, or other Contracts, and (iii) vacation, incentive, bonus, stock option, stock purchase, and restricted stock plan, program or policy sponsored by Sutherland or any Sutherland Subsidiary in which employees of Sutherland or any Sutherland Subsidiary participate (collectively, the “ Sutherland Benefit Plans ”), provided that for the avoidance of doubt, the Sutherland Benefit Plans shall not include any plan, program or policy sponsored by Waterfall. Sutherland has made available to Company a true and complete copy of (i) each Sutherland Benefit Plan (or, in the case of any unwritten Sutherland Benefit Plans, a description thereof), (ii) the three most recent annual reports on Form 5500 (including all schedules and attachments thereto) filed with the IRS with respect to each Sutherland Benefit Plan (if any such report was required by Law), (iii) the most recent summary plan description (or similar document) for each Sutherland Benefit Plan for which such a summary plan description is required by Law or was otherwise provided to plan participants or beneficiaries and (iv) each trust agreement and insurance or annuity contract or other funding or financing arrangement relating to any Sutherland Benefit Plan. To the Knowledge of Sutherland, each such Form 5500 and each such summary plan description (or similar document) was as of its date and is true, complete and correct in all material respects.

(b)          The Sutherland Benefit Plans are in compliance in all material respects with all applicable requirements of ERISA, the Code, and other applicable Laws, and have been administered, in all material respects, in accordance with their terms and such laws, except as, individually or the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. Each Sutherland Benefit Plan that is intended to be qualified within the meaning of Section 401 of the Code has received a favorable IRS determination letter or is maintained under a prototype or volume submitter document and entitled to rely on a favorable opinion or advisory letter that it is qualified under Section 401(a) of the Code that has not been revoked.

(c)          Except for ordinary and usual claims for benefits by participants and beneficiaries, there are no pending or, to the Knowledge of Sutherland, threatened proceedings with respect to any Sutherland Benefit Plan that could reasonably be expected to result in material liability to Sutherland or any Sutherland Subsidiary.

(d)          All Sutherland Benefit Plans subject to Section 409A of the Code have been amended to conform with Section 409A of the Code. No Sutherland Benefit Plan provides for the reimbursement of Taxes under Section 409A of the Code.

(e)          Sutherland does not provide any medical benefits under any Sutherland Benefit Plan after termination of employment other than as required under Section 4980B of the Code or similar law.

(f)          Neither Sutherland nor any Sutherland Subsidiary of a Sutherland Benefit Plan has engaged in a nonexempt “prohibited transaction” (described in Code Section 4975 or Section 406 of ERISA) that would subject Sutherland or any Sutherland Subsidiary to a material tax on prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of the Code.

(g)          Sutherland has never, and no ERISA Affiliate has ever, maintained or been obligated to contribute to (i) a Sutherland Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code or (ii) a Sutherland Benefit Plan that is a “multiemployer plan” within the meaning of Section 3(37) of ERISA.

(h)          Except as set forth on Section 5.13(h) of the Sutherland Disclosure Letter, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result, separately or in the aggregate, in the payment, acceleration or enhancement of any compensation or benefits, including, without limitation, the payment of any “excess parachute payments” within the meaning of Section 280G of the Code.

(i)          Neither Sutherland nor any Sutherland Subsidiary is a party to any labor or collective bargaining contract that pertains to employees of Sutherland or any Sutherland Subsidiary and, to the Knowledge of Sutherland, there have been no union organizing activities with respect to employees of Sutherland or any Sutherland Subsidiary since January 1, 2014. There are no pending or, to the Knowledge of Sutherland, threatened actions, suits, proceedings or investigations concerning labor matters with respect to Sutherland or any Sutherland Subsidiary, except for such actions, suits, proceedings or investigations that, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. Sutherland and each Sutherland Subsidiary is in compliance with all applicable Laws relating to labor, employment, employment practices, wages, hours, the Worker Adjustment Retraining and Notification Act and any similar state or local “mass layoff” or “plant closing” Law, collective bargaining, discrimination, civil rights, safety and health, workers’ compensation and the collection and payment of withholding and/or social security taxes and any similar tax, except for such events or circumstances that, individually or in the aggregate, would not reasonably be expected to result in a Sutherland Material Adverse Effect.

Section 5.14          Intellectual Property . None of the Sutherland Parties or any other Sutherland Subsidiary: (a) owns any registered trademarks, patents or copyrights, (b) has any pending applications, registrations or recordings for any trademarks, patents or copyrights or (c) is a party to any Contracts with respect to use by the Sutherland Parties or any other Sutherland Subsidiary of any trademarks or patents. Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, (i) no Intellectual Property used by the Sutherland Parties or any other Sutherland Subsidiary infringes or is alleged to infringe any Intellectual Property rights of any third party, (ii) no Person is misappropriating, infringing or otherwise violating any Intellectual Property of the Sutherland Parties or any other Sutherland Subsidiary, and (iii) the Sutherland Parties and the other Sutherland Subsidiaries own or are licensed to use, or otherwise possess valid rights to use, all Intellectual Property necessary to conduct the business of the Sutherland Parties and the other Sutherland Subsidiaries as it is currently conducted. Since January 1, 2014, none of the Sutherland or its Sutherland Subsidiaries has received any written or, to the Knowledge of Sutherland, verbal complaint, claim or notice alleging misappropriation, infringement or violation of any Intellectual Property rights of any third party.

Section 5.15          Environmental Matters . Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect: (i) no notification, demand, request for information, citation, summons or order has been received, no complaint has been filed, no penalty has been assessed and no investigation, action, suit or proceeding is pending or, to the Knowledge of Sutherland, is threatened relating to any of the Sutherland Parties, any of the Sutherland Subsidiaries or any of their respective properties, and relating to or arising out of any Environmental Law or Hazardous Substance; (ii) the Sutherland Parties and the other Sutherland Subsidiaries are and, for the past three (3) years, have been, in compliance with all Environmental Laws and all applicable Environmental Permits; (iii) each of the Sutherland Parties and each other Sutherland Subsidiary is in possession of all Environmental Permits necessary for Sutherland and each Sutherland Subsidiary to own, lease and, to the extent applicable, operate its properties or to carry on its respective business substantially as they are being conducted as of the date hereof, and all such Environmental Permits are valid and in full force and effect, except where the failure to be in possession of, or the failure to be valid or in full force and effect of, any of the Environmental Permits, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect; and (iv) there are no liabilities or obligations of the Sutherland Parties or any of the other Sutherland Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise arising under or relating to any Environmental Law or any Hazardous Substance and there is no condition, situation or set of circumstances that would reasonably be expected to result in any such liability or obligation.

Section 5.16          Properties .

(a)          None of the Sutherland Parties or any other Sutherland Subsidiaries own any real property, other than real property acquired as the result of foreclosures on Sutherland Loans in the ordinary course of business.

(b)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, the Sutherland Parties and the other Sutherland Subsidiaries have (i) valid and enforceable leasehold interests in all real property in which the Sutherland Parties or such other Sutherland Subsidiaries hold an interest pursuant to a lease, sublease, license or other similar written agreement (the “ Sutherland Leased Real Property ”, and such leases, subleases, licenses or other similar written agreements, the “ Sutherland Real Property Leases ”), and (ii) good title, or valid and enforceable rights to use under existing franchises, easements or licenses, or valid and enforceable leasehold interests in, all of its tangible personal properties and assets necessary to carry on their businesses as now being conducted, in each of clauses (i) – (ii), free and clear of Liens other than Permitted Liens. Section 5.16 of the Sutherland Disclosure Letter sets forth a true, complete and correct list of all Sutherland Leased Real Property.

(c)          Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, (i) each Sutherland Real Property Lease is valid and in full force and effect and (ii) none of the Sutherland Parties or any of the other Sutherland Subsidiaries, nor to the Knowledge of Sutherland any other party to a Sutherland Real Property Lease, has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Sutherland Real Property Lease, and none of the Sutherland Parties or any of the other Sutherland Subsidiaries has received notice that it has breached, violated or defaulted under any Company Real Property Lease.

Section 5.17          Material Contracts .

(a)           Section 5.17(a) of the Sutherland Disclosure Letter sets forth a list of each Contract (other than a Sutherland Benefit Plan) in effect as of the date hereof to which Sutherland or any Sutherland Subsidiary is a party or by which any of its properties or assets are bound that:

(i)          obligates the Sutherland Parties or any other Sutherland Subsidiary to make non-contingent aggregate annual expenditures (other than principal and/or interest payments or the deposit of other reserves with respect to debt obligations) in excess of $500,000 and is not cancelable within ninety (90) days without material penalty to the Sutherland Parties or any other Sutherland Subsidiary;

(ii)          contains any non-comp ete or exclusivity provisio ns with respect to any line of business or geographic area that re stricts the business of the Sutherland Parties or a ny other Sutherland Su bsidiary, including upon consum ma tion of th e transactions contemplated by this Agreement, or that othe rwise res tr ict s the lines of business conducted by the Sutherland Parties or a ny other Sutherland Su bsidiary o r the geographic area in which the Sutherland Parties or a ny other Sutherland Su bsidiary m ay conduct business;

(iii)         i s a Contract that obligates the Suth erland Parties or a ny other Sutherland Su bsidiary t o indemnify any past o r present directors, o ffi cers, or employees of the Sut her land Parties or a ny other Sutherland Su bsidiary pursuant to which the Sutherland Parties or a ny other Sutherland Su bsidiary i s the indemnitor;

(iv)         cons titutes (A) an Indebtedness obligation of the Suthe rland Parties or a ny other Sutherland Su bsidiary w ith a principal amount as of the date hereof greater than $50 0,000 o r (B) a Contr a ct (incl udi ng any so calle d take-or-p ay or keepwell agre em ents) un der which (1) any Person including Suther land or a Sutherland Subsidiary , has directly or indir ectly guarantee d I ndebtedness, liabiliti es or obliga tions of Suthe rla nd or Sutherlan d Subsidiary o r (2) Sutherland or a Sut herl and Subsidiary h as directly or indirec tly guarantee d I ndebtedness, liabiliti es or obliga tions of any P ers on, including Suthe rland or another Sutherland Subs idiary ( in each case other tha n endorsements for the purpose of collection in the ordinary course of busi ness);

(v)          requires the Sutherl and Parties or a ny other Sutherland Su bsidiary t o dispose of or acquir e assets or pr ope rties that (tog eth er with all of the assets and properties subject to such requirement in such Contract) have a fair m arket va lue in excess of $500,000, or involves a n y pending or contemplated merger, co nsolidation or similar business com bin ation transaction;

(vi)         constitutes an interest rate cap, interest rate collar, interest rate swap or other Contract relat ing to a swap or o ther hedging transa cti on of any type;

(vii)        constitutes a loan to any Person (other than a Wh olly Ow ned Sutherland Subsidiary or the Sutherland Operatin g Pa rtnership) by Sutherland or any Suthe rland Subsidia ry in an amount in excess of $500,000, other than th e acquisition or origination of Mortg age Loans in the o rdinary course of busi ness by a Mortgage Company S ubsid iary;

(viii)       sets forth the operat ional terms of a joint venture, partnership, limited liability company or strategic al liance of t he Sutherland Parties or a ny other Sutherland Su bsidiary w ith a third party;

(ix)          pro hibits the pl edgin g of the capital stock of Sutherland or any Suthe rland Subsidia ry or prohibits the issuan ce of guarantees by any Sutherland Subsidiary;

(x)           is with a Governmenta l Authority;

(xi)          has continuing “earn- out” or other similar contin gen t purchase price payment obligations, in each case that could result in payments, individually or in the aggregate, in ex cess of $500,000;

(xii)         is an employm e nt Contract or consulting Contract;

(xiii)        is a collecti ve barga ining agreement or other Cont ract with any labor organiza tion, union or association; or

(xiv)       is b oth (A) not made i n the ordinary course of busi ness consistent with past pr actice and (B) material to Sutherland and the Suth erland Subs idiaries , taken as a whole.

(b)           Eac h Contract in any of the categorie s set forth in Section 5.17(a) to which the Sutherland Parties or a ny other Sutherland Su bsidiary i s a party or by which it is bound as of the date hereof is referred to h erein a s a “ Sutherland Materi al Con tract .”

(c)           Except as, individua lly or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, each Sutherland Mater ial Con tract is legal, valid, bindin g and enforceable on the Sutherland Parties and each other Sutherla nd Subsidiary t hat is a party thereto and, to t he Kno wledge of Sutherland , each oth er party ther eto, and is i n full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). Except as, individua lly or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, the Sutherland Partie s and each other Sutherla nd Subsidiary h as performed all oblig ations required to be performed by it prior to the date hereof under each Suthe rland M aterial Con tract and, to the Knowledge o f Sutherland , each oth er party ther eto has perfo rmed a ll obligations required to be performed by it under such Sutherland Material Con tract prior to the date hereo f. None of the Su therla nd Parties or a ny other Sutherland Su bsidiary, nor, to the Knowledge of Sutherland , any othe r p arty there to, is in br each o r violation of, or def aul t under, any S uth erland Material Con tract, and no event has occu rred that, with notice or lapse of time or bot h, would constitu te a violation, breach or default under any Su the rland Material Con tract, except where in each case such breach, violation or default, individuall y or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. None of the Sutherla nd Parties or a ny other Sutherland Su bsidiary h as received notice of any violation or default under any Su the rland Material Con tract, except for violations or defaults that, indiv idu ally or i n the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect. Since December 31, 2 014 and as of the date hereof, neither Sutherl and no r any Suth erland Subs idiary has received any written notice of the intention of any party to cancel, termin ate, m aterially change the scope of rights under or fail to renew any Su the rland Material Con tract.

Section 5.18          Insurance . Sutherland has made available to Company copies of all material insurance policies and all material fidelity bonds or other material insurance Contracts providing coverage for Sutherland and the Sutherland Subsidiaries (the “ Sutherland Insurance Policies ”). Except as, individually or in the aggregate, would not reasonably be expected to have a Sutherland Material Adverse Effect, all premiums due and payable under all Sutherland Insurance Policies have been paid, and the Sutherland Parties and the other Sutherland Subsidiaries have otherwise complied in all material respects with the terms and conditions of all Sutherland Insurance Policies. No written notice of cancellation or termination has been received by the Sutherland Parties or any other Sutherland Subsidiary with respect to any such policy which has not been replaced on substantially similar terms prior to the date of such cancellation.

Section 5.19          Related Party Transactions . Except (i) as set forth in Section 5.19 of the Sutherland Disclosure Letter, (ii) the Sutherland Partnership Agreement or (iii) as described in the publicly available Sutherland SEC Documents filed with or furnished to the SEC on or after January 1, 2015 and prior to the date hereof (the “ Sutherland Related Party Agreements ”), no agreements, arrangements or understandings between any of the Sutherland Parties or any other Sutherland Subsidiary (or binding on any of their respective properties or assets), on the one hand, and any other Person, on the other hand (other than those exclusively among Sutherland and Sutherland Subsidiaries), are in existence that would be required to be disclosed under Item 404 of Regulation S-K promulgated by the SEC if Sutherland were subject to reporting thereunder. The termination of the Sutherland Management Agreement and the conversion of the Sutherland OP Special Unit in connection with the consummation of the Mergers will not give rise to the obligation to pay any termination fee or any other liability pursuant to the terms thereof; provided , that (i) any indemnification obligation thereunder shall survive termination in accordance with its terms and (ii) any compensation earned by Waterfall under the Sutherland Management Agreement up to the Merger Effective Time shall be due and payable in accordance with the terms thereof.

Section 5.20          Brokers . No broker, investment banker or other Person (other than the Persons listed in Section 5.20 of the Sutherland Disclosure Letter, each in a fee amount not to exceed the amount set forth in Section 5.20 of the Sutherland Disclosure Letter, pursuant to the terms of the engagement letter between Sutherland and such Person, true, correct and complete copies of which have been provided to Company prior to the date hereof) is entitled to any broker’s, finder’s or other similar fee or commission in connection with the Mergers and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Sutherland Parties or any other Sutherland Subsidiary.

Section 5.21          Opinion of Financial Advisor . The Sutherland Board has received the oral opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated (to be confirmed in writing, as of the date of this Agreement), to the effect that, as of the date of such opinion and based on and subject to the assumptions, limitations, qualifications and conditions set forth in its written opinion, the Merger Consideration to be paid to holders of the Sutherland Common Stock is fair, from a financial point of view, to the holders of shares of the Sutherland Common Stock (other than Company and its Affiliates). Sutherland will deliver to Company a complete and correct copy of such opinion promptly after receipt thereof by the Sutherland Board solely for informational purposes.

Section 5.22          Takeover Statutes . None of Sutherland or any Sutherland Subsidiary is, nor at any time during the last two (2) years has been, an “interested stockholder” of Company as defined in Section 3-601 of the MGCL. The Sutherland Board has taken all action necessary to render inapplicable to the Sutherland Merger the restrictions on business combinations contained in Subtitle 6 of Title 3 of the MGCL. The restrictions on control share acquisitions contained in Subtitle 7 of Title 3 of the MGCL are not applicable to the Sutherland Merger. No other Takeover Statutes are applicable to this Agreement, the Mergers or the other transactions contemplated by this Agreement. No dissenters’, appraisal or similar rights are available to the holders of Sutherland Common Stock with respect to the Sutherland Merger and the other transactions contemplated by this Agreement.

Section 5.23          Mortgage Backed Securities . To the Knowledge of Sutherland, the information relating to each mortgage backed security set forth in Section 5.23 of the Sutherland Disclosure Letter is true and correct in all material respects.

Section 5.24          Information Supplied . None of the information relating to the Sutherland Parties or any other Sutherland Subsidiary contained or incorporated by reference in the Proxy Statements or the Form S-4 or that is provided by any of the Sutherland Parties or any other Sutherland Subsidiary in writing for inclusion or incorporation by reference in any document filed with any other Governmental Authority in connection with the transactions contemplated by this Agreement will (a) in the case of the Proxy Statements, at the time of the mailing thereof, at the time of the Company Stockholders Meeting, at the time the Form S-4 is declared effective or at the Sutherland Merger Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) in the case of the Form S-4 or with respect to any other document to be filed by Company with the SEC in connection with the Mergers or the other transactions contemplated by this Agreement, at the time of its filing with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

Section 5.25          No Other Representations and Warranties . Except for the representations or warranties expressly set forth in this Article 5 , none of the Sutherland Parties or any other Person has made any representation or warranty, expressed or implied, with respect to the Sutherland Parties or any other Sutherland Subsidiary, their respective businesses, operations, assets, liabilities, condition (financial or otherwise), results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Sutherland Parties or any other Sutherland Subsidiary. In particular, without limiting the foregoing disclaimer, none of the Sutherland Parties or any other Person makes or has made any representation or warranty to any Company Party or any of their respective Affiliates or Representatives with respect to, except for the representations and warranties made by the Sutherland Parties in this Article 5 , any oral or written information presented to the Company Parties or any of their respective Affiliates or Representatives in the course of their due diligence of the Sutherland Parties, the negotiation of this Agreement or in the course of the transactions contemplated by this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the Sutherland Parties acknowledge and agree that none of the Company Parties or any other Person has made or is making any representations or warranties relating to the Company Parties whatsoever, express or implied, beyond those expressly given by the Company Parties in Article 4 , including any implied representation or warranty as to the accuracy or completeness of any information regarding the Company Parties furnished or made available to the Sutherland Parties or any of their respective Representatives.

Article 6

COVEN ANTS RELATING T O C ONDUCT OF BUSINESS PENDING THE MERGERS

Section 6.1            Conduct of Business by Company .

(a)          Company covenan ts and agre es that , between the date of this Agreement and the earlier to occur of the Sutherland Merger Effecti ve Time and the date, if any, on which this Agreement is terminated p ursuant to Section 9.1 (the “ Interim Period ”), except (1) to the ext ent required by Law, (2) as may be consen ted to in advance in writing by Sutherland (which consent shall not be unreasonably withheld, delayed or conditioned), (3) as may be expressly contemplated, expressly required or expressly permitted by th is Agreement, (4) for the Te nder Offe r, the Permitt ed Loan Sale and, subject to Section 6.1(b)(vii) , the GMFS Sale and the Permitt ed Securit ies Sale or (5) as set forth in Section 6.1(a) or Section 6.1(b) of the Company Disclosure Letter , each of the Company Par ties shall, an d shall cause ea ch of the other Company Subsidiaries to, (i) conduct its busin ess in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use all reasonable efforts to (A) preserve intact its current business organization, goodwill, ongoing businesses and significant relationships with third parties and (B) maintain the stat us of Company as a REIT.

(b)          Withou t limiti ng th e fo regoing, Company covenants and agr ees that , during the Interim Period, except (1 ) to the exten t required by Law, (2) as may be consen ted to in advance in writing by Sutherland (which consent shall not be unreasonably withheld, delayed or conditioned), (3) as may be expressly contemplated, expressly required or expressly permitted by th is Agreement, (4) for the Te nder Offe r and the Perm itted Loan Sa le or (5 ) as set forth in Section 6.1(a) or Section 6.1(b) of the Company Disclosure Letter , the Company Parties sha ll not , and shall not cause or permit any other Compa ny Subsidiary to, do any of the followi ng:

(i)           amend or propose to amend (A) t he Company Governing Documen ts or (B) such equivalent organ izational or governing documents of an y Company Subsidiary materi al to Company and t he Company S ubsidiar ies, or (C) waive the stock ow ner ship limit or create an Excepted Hol der Limit (as defined in the Company Charter) under th e Company Chart er;

(ii)          adjust, split, combine, reclassify or subdivide any shares o f s tock or other equity securitie s o r ownership interests of Co mpany or any Company Su bsidiary (o ther than any Wholly Ow ned Company Subs idiary);

(iii)         declare, set aside or pay any dividend on or ma ke any other actual, co nstructive or deemed distributions ( whe ther in cash, stock, property or otherwise) with respec t t o shares of capital stock of Company or any Company Su bsidiary or oth er equity securities o r ownership interests in Co mpany or any Company Su bsidiary or oth erwise make any paymen t to its or their stockholders or oth er equityholders in th eir capacity as such, except for (A) the declaration and payment by Company of regular divide nds in a ccordance with past practice at an annualized rate not to exceed $1.60 per share, (B) the d eclaration and payment by the Company Operating Partner ship of regular distributions in accordance with past practice and for any interim period through th e Closing Date, on the Comp any OP Units , (C) the declaration and payment of dividends or other distributions to Co mpany by any directly o r indire ctly Wholly Owne d C ompany Subs idiary, and (D) distributions b y any Company Subsidiary that i s not wholly owned, directly or indirectly, by Company , i n accordance wi th the requirements of the organizational documents of such Company; provided , that, notwith standing the restriction on dividends and other distributions in this Section 6.1(b)(iii) , Company and any Company S ubsidiar y shall be permitted to mak e distributions, including under Sections  858 or 860 of the Code, reaso nab ly necessar y fo r Company to maintain its s tatus as a REIT under the Code and a void or reduce the i mposition of any entity level income or excise Tax under the C ode ;

(iv)         redee m, r epurchase or o therwise acquire, dir ect ly or indirectly, any shares of its capital stock or other eq uity interests of Company or a Company S ubs idiary (oth er than redemptions o f the Company OP Units pursuant to the Company P artnership Agree ment);

(v)          except for transaction s among Company and one or more W holly Ow ned Comp any Subs idiaries or among one or more Wholly Owned Comp any Subs idiaries, or as otherwise contemp la ted in Section 6.1(b)(vi) , issue, sell, pledge, dispose, encumber or grant any shares of Co mpa ny or any of the Com pany Subsid iaries’ cap ital stock (includin g the Company OP Units), or any options, warran ts, co nvertible securities or other rights of any ki nd to acquire any shares of Company or any of the Com pany Subsid iaries’ cap ital stock or other eq uity interests;

(vi)         acquire or agree to acq uire (incl udi ng by merger, cons olidation or acquisition of stock o r a ssets) any real or pe rso nal property, cor por ation, partnership, limited liability company, other business o rganiza tion or any division or materi al amount of ass ets thereof, except (A) acquisitions of mortgage loans and mortga ge-backed securitie s in the ordinary course of busine ss, (B) acquisitions by Com pany or any Wholly Own ed Company Subs idiary of or from an existing Wh oll y O wned Company Subs idiary, (C) acquisitions of rea l property as the result of foreclosures on Company Loans in the ordi nary course of busine ss, and (D) other acquisiti ons of personal property for a purchase price of less than $500,000 in the aggregate ;

(vii)        sell, mortgage, pledge, lease, assign, transfer, dispose of or encumber, or effect a dee d in lieu of foreclosure with respect to, any property or assets (including, for th e avoida nce of do ubt, the GMFS Sale or the Permitte d Securities Sale ), except in the ordinary course of busine ss consistent with past prac tice, provided that any sale, mortgage, pledge, lease, assignme nt, transfer, disposition or deed (A) in connection wi th (x) the satisfaction of any margin call or (y) the posting of col lat eral in connection with any Contract to which the Com pany or a ny Company Su bsidiary is a p arty shall be consi dered to be done in the ordinary course of busine ss consistent with past prac tice and (B) with respect to any investments made with the proceeds from the Permitted Sales, in conne ction with the sale of such investments to obtain cash for the Tender Offer Funds;

(viii)       incur , create, assume, refinance, replace or prepay any Indebtednes s f or borrowed money or iss ue or amend the ter ms of any de bt securities of Company or any of the Com pany Subsid iaries, exc ept (A) Indebtedness incurred und er Company’s existing Wareho use Fac ilities in t he ordinary course of busine ss consistent with past prac tice (including to the extent n ecessary t o pay dividends permitted by Section 6.1(b)(iii) ), (B) funding any transactions permitted by this Section 6.1(b) , (C) Indebtedness that does no t, in the agg regate, exceed $500,000; and (D) refinan c ing of existing Indebtedness ( provided , t hat the terms of such new Indebtedness shall not be materially m ore onerous on Company compared to the e xisting Indebtedness and the prin cipal amount of such replacement Indebtedness shall not be materially g reater than the Indebtedness it is replac ing);

(ix)          make an y loans, advances or capital contributions to, or investments in, any ot her Person (including to any of its o fficers, d irectors, Affiliates, agents or con sultants), make any ch ange in its existing borrowing or lending arrangements f or or on behalf of such Pers ons , or enter into an y “keep w ell ” or similar agreement to m ain tain the financial condition of another entity, other than (A) by Company or a Wholly Owned Company Su bs idiary to Company or a Wholly Owned Company Su bs idiary and (B) investments permi tted pursuant to Section 6.1(b)(vi) ;

(x)           enter into, renew, modify, amend or terminate, or waive, r ele ase, compro mis e or assign any rights or c lai ms under, any Comp any Material Contract (or any Contract that, if exi stin g as of t he date hereof, would be a Compan y Mate rial Contract ), other than (A) any ter mination or renewal in accordance wit h the terms of any existing Company Material Contract that occurs automatically without any action (other than notice of ren ewal) by Company or any Company Su bsidiary or (B)  as may be reasonably necessary to comply with the terms of this Agreement;

(xi)          make any payme nt, direc t or indirect, of any liabi lit y of Company or any Company Su bsidiary be fore the same comes due in accordance with its terms, other than (A) in the ordinary course of busine ss consistent with past prac tice or (B) in connection with di spositions or refinancings of any In deb tedness otherwise pe rmitted hereu nder;

(xii)         waive, release , assign, settle or compromise any Action, ot her than waiver s, rel eases, assignments, settlements or compromises that (A) w ith respect to the payment of monetary damages, involve only the payment of monetary damages (excluding any portion of such payment payable under an existing property-level insurance policy) (x) equal to or less than the amounts spe cifically reserved with respect thereto on the most recent balance sheet of Company included in the C ompany S EC Documents fil ed and publicly availa ble prior to the date of this Agreement or (y) that do not exceed $2 00,000 individually or $ 500,000 in the aggreg ate, (B) do not involve the imposition of injunctive relief against Company or any Company Su bsidiary or the Surviving Entity, (C)  do not provide for any admission of material liability by Company or any of the Com pany Subsid iaries, exc luding in each case any such matter relating to Taxes (which, for the avo idance of doubt, shall be covered by Section 6.1(b)(xviii) ), (D) with respect to any Action involving any pres ent, fo rmer or purported holder or gr oup of holders of Co mpa ny Common Stock in a ccordance with Section 7.6(c) , and (E) waivers of late fees and other loan modifications of Company Loans entered int o in the ordin ary course of busine ss;

(xiii)        (A) hire or terminate any officer or director of Company or an y Company Su bsidiary, ( B) i ncrease in any man ner the amount, rate or terms of compensation or benefits of any of Com pan y’s directors, or ( C) ente r into, adopt, am end or terminate any employme nt, bonus, severance or retirement Contract or Co mpany Benef it Plan or other compensation or emp loyee benefits arra nge ment, except as may be required to comply with applicable Law;

(xiv)       fail to maintain all fi nancial books and records in all material respects in accordance with GAAP or make any material change to its methods of accounting in effect at January 1, 2015, except as required by a change in GAAP or in applicable Law , or mak e any change w ith r esp ect to accounting policies, principles or practices unless requi red by GAAP or the SEC;

(xv)        enter i nto any n ew l ine of business;

(xvi)       form any new funds, joint ventures or non-traded real estate in vestment trusts or other pooled investmen t v ehicles;

(xvii)      fail to duly and timely file all material reports and other material documents required to be filed with any Governmental Authority, s ubject to extensions p ermitted by Law;

(xviii)     enter into or modify in a manner adv ers e to Company any Company Tax P rotectio n Ag reement, make, change or rescind any material e lec tion relating to Taxes, change a material metho d of Tax accounting, file or a mend any material Tax Re turn, settle or com promise an y materia l f ederal, state, local or foreign Tax liability, au dit, cla im o r assessment, enter into an y material closing agreement related to Taxes, or know ingly surre nder an y r ight to claim any material Tax refund, except, in ea ch c ase, (A) to the extent required by Law or (B) to the extent necessa ry (x) to preserve Company’s qualification a s a REI T under the Code or (y ) to qualify or preserv e the status of an y Company Subsidiary as a d isregarded entity o r partnership for United St ates federal income tax purposes or as a Qualified REIT Subsi dia ry or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(xix)        take any action that wo uld, or fai l to ta ke any actio n, the failure of wh ich to be taken would, reasonably be expected to cause Company to fail to qualif y as a R EIT or any Company Subsi diary to cea se to be treated as any of (A) a partnership or disregarded entity for fe deral income tax pu rposes or (B) a Qualified REIT Subs idia ry or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(xx)         other than as permitted by Section 6.1(b)(vi) above, make or commit to make any rec urr ing capital expenditures that are in excess of $500,000 per quarter in t h e aggregate;

(xxi)        adopt a plan of merger, complete or partial liquidation or re solutions providing for or authorizing such merge r, liquidation or a dissolution, consoli dat ion, recapitalization or bankruptcy reorganizat ion , except in connection with any transaction permitted by Section 6.1(b)(vi) or Section 6.1(b)(vii) in a manner that would not reasonably be expected to be materially adverse to Company or to prevent or impair the ability of the Company Parties to consum mate the Merger;

(xxii)       amend or modify t he eng agement let ters entered into with the Persons listed on Section 4.20 of the Company Disclosure Letter , in a manner adverse to Company, any Company Subs idiary or Sut herland, or engage other financi al ad visers in connection with the transactions contemplated by this Agreement;

(xxiii)      make any payme nt, distr ibution or transfer of assets to Adv isor or its Affiliates (other tha n Co mpany and a ny Company S ubsidiar y) excep t in such amount a nd as expressly contemplated by this Agreement or the Company Terminat ion Agreement ;

(xxiv)     wi thdraw the Tender Off er; or

(xxv)      authoriz e, or enter in to any Contrac t t o do any of the foregoin g.

(c)          Notwithstanding anything to the contrary set forth in this Agreement, nothing in thi s Agreeme nt shall prohibit Company fr om taking any a ction, a t any time or fr om tim e to time, tha t i n the reasonable judgment of the Company Board, upon advic e of counsel to Company, is reasonably ne cessary (i) for Company to avoid or t o co ntinue t o avoid i ncu rring entity level income or excise Taxes under the Co de or t o main tain its q ualifica tion as a REIT under the Code for a ny pe riod or po rtion thereof ending on or prior to the Sutherlan d M erger Effecti ve Time or (ii) to establish or main tain any exemption fr om or otherwise avoid the im pos ition of any requirement that Company or any Company Su bsidiary be reg istered as an inves tment company under the Investm ent Comp any Act, i ncluding in the case o f clause (i) only, making dividend or any other actual, cons tru ctive or deemed distribution pa yme nts to stockholders of Company in accordance wit h this A greement or otherwise as permitted pu rsuant to Section 6.1(b)(iii) .

Section 6.2            Conduct of Business by Sutherland .

(a)          Sutherland c ovenants a nd a grees that , during the Interim Period, except (1 ) to the exten t required by Law, (2) as may be consen ted to in advance in writing by Sutherland (which consent shall not be unreasonably withheld, delayed or conditioned), (3) as may be expressly contemplated, expressly required or expressly permitted by th is Agreement, or (4) as set forth in Section 6.2(a) or Section 6.2(b) of the Sutherland Disclos ure Let ter, each of the Sutherland Parties shall, and shall cause ea ch of the other Sutherland Subsidiaries t o, (i) conduct its busin ess in all material respects in the ordinary course and in a manner consistent with past practice, and (ii) use all reasonable efforts to (A) preserve intact its current business organization, goodwill, ongoing businesses and significant relationships with third parties and (B) maintain the stat us of Sutherland as a REIT.

(b)          Wit hout limiti ng th e fo regoing, Sutherland covenants and agrees that , during the Interim Period, except (1 ) to the exten t required by Law, (2) as may be consen ted to in advance in writing by Company (which consent sh all not be unreasonably withheld, delayed or conditioned), (3) as may be expressly contemplated, expressly required or expressly permitted by th is Agreement, or (4) as set forth in Section 6.2(a) or Section 6.2(b) of the Sutherland Disclos ure Let ter, the Sutherland Parties shall not, and shall not cause or permit any other Suthe rla nd Subsidiary to, do any of the followi ng:

(i)           amend or propose to amend (A) t he Sutherland Governing Docu ments or (B) such equivalent organ izational or governing documents of an y Sutherland Subsidiary mat erial to Sutherland an d the Suther land Subsid iaries, or (C) waive the stock ow ner ship limit or create an Excepted Hol der Limit (as defined in the Sutherland Charter) under the Sutherland Ch arter;

(ii)          adjus t, split, combine, reclassify or subdivide any shares o f s tock or other equity securitie s o r ownership interests of Su therland or any Sutherl and Subsidiary (other than any Wholly Owned Sutherland S ubsidiary);

(iii)         declare, set aside or pay any dividend on or ma ke any other actual, co nstructive or deemed distributions ( whe ther in cash, stock, property or otherwise) with respec t t o shares of capital stock of Sutherland or any Sutherl and Subsidiary or other equity securitie s o r ownership interests in Su therland or any Sutherl and Subsidiary or otherwise make any pay men t to its or their stockholders or oth er equityholders in th eir capacity as such, except for (A) the declaration and payment by Sutherland of regular div idends in a ccordance with past practice at an annualized rate not to exceed $1.25 per share, (B) the declar ation and payment by the Sutherland Operating Part nership of regular distributions in accordance with past practice and for any interim period through th e Closing Date, on the Suth erland OP Un its, (C)  the declaration and payment of dividends or other distributions to Su therland by any directl y or indire ctly Wholly Owne d S utherland S ubsidiary, and (D) distributions b y any Sutherland Subsidiary tha t is not wholly owned, directly or indirectly, by Sutherl and , in accordance with the requirements of the organizational documents of such Sutherland; provided , tha t, notwith standing the restriction on dividends and other distributions in this Section 6.2(b)(iii) , Sutherland and any Suther land Subsid iary shall be permitted to make distributions, including under Sections  858 or 860 of the Code, reaso nab ly necessar y fo r Sutherland to maintain it s status as a REIT under the Code and a void or reduce the i mposition of any entity level income or excise Tax under the C ode ;

(iv)         redee m, r epurchase or o therwise acquire, dir ect ly or indirectly, any shares of its capital stock or other eq uity interests of Sutherland or a Suther lan d Subsidiary ( ot her than redemptions o f the Sutherland OP Units pursu ant to the Sutherlan d Partnership Ag reement);

(v)          except for transaction s among Sutherland and one or mor e Wholly Ow ned Suth erl and S ubsidiaries or among one or more Wholly Owned Suth erl and S ubsidiaries, or as otherwise contemp la ted in Section 6.2 (b)(vi), issue, sell, pledge, dispose, encumber or grant any shares of Su the rland or any of the Sutherland Sub sidiaries’ capital stock (includin g the Sutherland OP Units), or any options, warran ts, co nvertible securities or other rights of any ki nd to acquire any shares of Sutherland or any of the Sutherland Sub sidiaries’ capital stock or other eq uity interests;

(vi)         acquire or agree to acq uire (incl udi ng by merger, cons olidation or acquisition of stock o r a ssets) any real or pe rso nal property, cor por ation, partnership, limited liability company, other business o rganiza tion or any division or materi al amount of ass ets thereof, except (A) acquisitions of mortgage loans and mortga ge-backed securitie s in the ordinary course of busine ss, (B) acquisitions by Sut herland or any Wholly Owned Sutherla nd Subsidiary of or from an existing Wholl y O wned Sutherland S ubsidiary, (C) acquisitions of rea l property as the result of foreclosures on Sutherland Loans in the o rdinary course of busine ss, and (D) other acquisiti ons of personal property for a purchase price of less than $500,000 in the aggregate ;

(vii)        sell, mortgage, pledge, lease, assign, transfer, dispose of or encumber, or effect a dee d in lieu of foreclosure with respect to, any property or assets, except in the ord inary course of busine ss consistent with past prac tice, provided that any sale, mortgage, pledge, lease, assignme nt, transfer, disposition or deed in connection wit h ( x) the satisfaction of any margin call or (y) the posting of col lat eral in connection with any Contract to which Sutherland or any Sutherland Subsidi ary is a party shall be consi dered to be done in the ordinary course of busine ss consistent with past prac tice;

(viii)       incur, create, assume, refinance, replace or prepay any Indebtednes s f or borrowed money or iss ue or amend the ter ms of any de bt securities of Sutherland or any of the Sutherland Sub sidiaries, except (A) Indebtedness incurred und er Sutherland ’s existing War ehouse Fac ilities in t he ordinary course of busine ss consistent with past prac tice (including to the extent n ecessary t o pay dividends permitted by Section 6.2(b)(iii) ), (B) funding any transactions permitted by this Section 6.2(b) , (C) Indebtedness that does no t, in the agg regate, exceed $500,000; and (D) refinan c ing of existing Indebtedness ( provided , t hat the terms of such new Indebtedness shall not be materially m ore onerous on Sutherland compared to th e existing Indebtedness and the prin cipal amount of such replacement Indebtedness shall not be materially g reater than the Indebtedness it is replac ing);

(ix)          make an y loans, advances or capital contributions to, or investments in, any ot her Person (including to any of its o fficers, d irectors, Affiliates, agents or con sultants), make any ch ange in its existing borrowing or lending arrangements f or or on behalf of such Pers ons , or enter into an y “keep w ell ” or similar agreement to m ain tain the financial condition of another entity, other than (A) by Sutherland or a Wholly Ow ned Sutherland S ubsidiary to Sutherland or a Wholly Owned Sutherland S ubsidiary and (B) investments permi tted pursuant to Section 6.1(b)(vi) ;

(x)           enter into, renew, modify, amend or terminate, or waive, r ele ase, compro mis e or assign any rights or c lai ms under, any Suth erl and Material Contr act (or any Contract that, if exi stin g as of t he date hereof, would be a Suther land M aterial Contr act), other than (A) any ter mination or renewal in accordance wit h the terms of any existing Sutherland Material Contr act that occurs automatically without any action (other than notice of ren ewal) by Sutherland or any Sutherl and Subsidiary or (B) as may be reasonab ly necessary to comply with the terms of this Agreement;

(xi)          make any payme nt, direc t or indirect, of any liabi lit y of Sutherland or any Sutherl and Subsidiary before the same comes due in accordance with its terms, other than (A) in the ordinary course of busine ss consistent with past prac tice or (B) in connection with di spositions or refinancings of any In deb tedness otherwise pe rmitted hereu nder;

(xii)         waive, release , assign, settle or compromise any Action, ot her than waiver s, rel eases, assignments, settlements or compromises that (A) w ith respect to the payment of monetary damages, involve only the payment of monetary damages (excluding any portion of such payment payable under an existing property-level insurance policy) (x) equal to or less than the amounts spe cifically reserved with respect thereto on the most recent balance sheet of Sutherland made available to Company prior to the date of this Agreement or (y) that do not exceed $2 00,000 individually or $ 500,000 in the aggreg ate, (B) do not involve the imposition of injunctive relief against Sutherland or any Sutherl and Subsidiary or the Surviving Entity, (C)  do not provide for any admission of material liability by Sutherland or any of the Sutherland Sub sidiaries, excluding in each case any such matter relating to Taxes (which, for the avo idance of doubt, shall be covered by Section 6.2(b)(xviii) ), and (D) waivers of late fees and other loan modifications of Sutherland Loans entered into in the ordin ary course of busine ss;

(xiii)       (A) hire or terminate any officer or director of Sutherland or any Sutherl and Subsidiary , (B) increase in any manner the amount, rate or terms of compensation or benefits of any of Sut her land’s directors, o r (C) ente r into, adopt, am end or terminate any employme nt, bonus, severance or retirement Contract or Su therland Be nefit Plan or other compensation or emp loyee benefits arra nge ment, except as may be required to comply with applicable Law;

(xiv)       fail to maintain all fi nancial books and records in all material respects in accordance with GAAP or make any material change to its methods of accounting in effect at January 1, 2015, except as required by a change in GAAP or in applicable Law , or mak e any change w ith r esp ect to accounting policies, principles or practices unless requi red by GAAP;

(xv)        enter into any new line of business;

(xvi)       form any new funds, joint ventures or non-traded real estate in vestment trusts or other pooled investmen t v ehicles;

(xvii)      fail to duly and timely file all material reports and other material documents required to be filed with any Governmental Authority, s ubject to extensions p ermitted by Law;

(xviii)     enter into or modify in a manner adv ers e to Sutherland any Sutherland Tax Protec tion Agreement, make, change or rescind any material e lec tion relating to Taxes, change a material metho d of Tax accounting, file or a mend any material Tax Re turn, settle or com promise an y materia l f ederal, state, local or foreign Tax liability, au dit, cla im o r assessment, enter into an y material closing agreement related to Taxes, or know ingly surre nder an y r ight to claim any material Tax refund, except, in ea ch c ase, (A) to the extent required by Law or (B) to the extent necessa ry (x) to preserve Sutherland’s qualificatio n as a REI T under the Code or (y ) to qualify or preserv e the status of an y Sutherland Subsidiary as a disregarded entity o r partnership for United St ates federal income tax purposes or as a Qualified REIT Subsi dia ry or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(xix)        take any action that wo uld, or fai l to ta ke any actio n, the failure of wh ich to be taken would, reasonably be expected to cause Sutherland to fail to qua lify as a R EIT or any Sutherland Su bsidiary to cease to be treated as any of (A) a partnership or disregarded entity for fe deral income tax pu rposes or (B) a Qualified REIT Subs idia ry or a Taxable REIT Subsidiary under the applicable provisions of Section 856 of the Code, as the case may be;

(xx)         other than as permitted by Section 6.1(b)(vi) above, make or commit to make any rec urr ing capital expenditures that are in excess of $500,000 per quarter in t h e aggregate;

(xxi)        adopt a plan of merger, complete or partial liquidation or re solutions providing for or authorizing such merge r, liquidation or a dissolution, consoli dat ion, recapitalization or bankruptcy reorganizat ion , except in connection with any transaction permitted by Section 6.2(b)(vi) or Section 6.2(b)(vii) in a manner that would not reasonably be expected to be materially adverse to Sutherland or to prevent or impair the ability of the Sutherland Parties to con summate the Merger;

(xxii)       amend or modify t he eng agement let ters entered into with the Persons listed on Section 5.20 of the Sutherland Disclosure Let ter, in a manner adverse to Sutherland, any Sutherlan d Subsidia ry or Company, or engage oth er financi al ad visers in connection with the transactions contemplated by this Agreement; or

(xxiii)      authorize, or enter in to any Contrac t t o do any of the foregoin g.

(c)          Notwithstanding anything to the contrary set forth in this Agreement, nothing in thi s Agreeme nt shall prohibit Sutherland from taking an y action, a t any time or fr om tim e to time, tha t i n the reasonable judgment of the Sutherland Board, upon ad vice of counsel to Sutherland, is reasonably necessary (i) for Sutherland to avo id o r to continue t o avoid i ncu rring entity level income or excise Taxes under the Co de or t o main tain its q ualifica tion as a REIT under the Code for a ny pe riod or po rtion thereof ending on or prior to the Sutherlan d M erger Effecti ve Time or (ii) to establish or main tain any exemption fr om or otherwise avoid the im pos ition of any requirement that Sutherland or any Sutherl and Subsidiary be registered as an investment company under the Investm ent Comp any Act, i ncluding in each case, i ncluding i n the case of clause (i) only, making dividend or any other actual, cons tru ctive or deemed distribution pa yme nts to stockholders of Sutherland in accordance with this A greement or otherwise as permitted pu rsuant to Section 6.2(b)(iii) .

Section 6.3           No Control of Other Parties’ Business . Nothing contained in this Agreement shall give (i) Sutherland, directly or indirectly, the right to control or direct Company or any Company Subsidiary’s operations prior to the Sutherland Merger Effective Time, or (ii) Company, directly or indirectly, the right to control or direct Sutherland or any Sutherland Subsidiary’s operations prior to the Sutherland Merger Effective Time. Prior to the Sutherland Merger Effective Time, (i) Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and the Company Subsidiaries’ respective operations and (ii) Sutherland shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and the Sutherland Subsidiaries’ respective operations.

Article 7

ADDITIONAL COVENANTS

Section 7.1            Preparation of the Form S-4 and the Proxy Statements; Stockholder Approvals .

(a)          As promptly as reasonably p racticable following the date of this Agreement, (i) Company shal l prepare and c ause to be filed with the SEC a Company Proxy Stateme nt i n preliminary form with re spect to the Company Stockholders Meetin g and (ii) Company and Compan y Operati ng Partnership shall prepare (with Sutherl and’s reasonable coo peration) and cause to be filed with the SEC, a registration stateme nt on the Form S-4 under the Securiti es Act (t he “ Form S -4 ”), which will include the Co mpany Proxy S tatement , to register under the Sec urities Act the shares o f Company Commo n Stock to be issued in the Sutherl and Merger and Compa ny OP Units to be issued in connection with the Partnership Merger, and to register under the Securities Act the resale o f such securiti es by affiliates (together, the “ Registered Securities ”). E ach of Company, Compa ny Operating Partnership and Sutherland shall use its reasonable best efforts to (A) have the Form S-4 declar ed effective under th e Securities Act as promptly as practicable after such filing, (B) ensure that the Form S-4 complies in all ma terial re spects with the applicable provisions of the Exchange Act and the Securi ties Act and (C) keep the Form S-4 e ffective for so l ong as ne cessary to permit the Company Common Stock and Company OP Units to be issued in the Mergers and to permit all a ffiliate s named in the Form S-4 to resell the Regi stered Se curities, unle ss this Agreement is terminated pur suant to Article 9 . Each of Company, Company Operating Partnership and Sutherland shall furnish all informati on concerning itself, its Affiliates and the holders of its capi tal stock to Company and provide such ot her assi stance as may be reasonably requested in connection with the preparation, filing and distribution of the Form S-4 and the Company Pr oxy State ment and shall provide to their and each other’s counsel such representations as reasonably necessary to render the opinions required to be filed therewith. The Form S-4 and the Company Pr oxy State ment sha ll include all informati on rea sonably requested by such other Party to be included therei n. Co mpany shall promptly noti fy Suthe rland upon the receipt of any com ments from the SEC or any request from the SEC fo r amendments or suppl emen ts to the Form  S-4 or the Company Pro xy Statement , an d shall, as promptly as practicable after receipt thereof, provide Sutherland with copies of a ll correspo ndence between it and its Representatives, on one han d, and the SEC, on the other hand, and al l written comments with respect to the Form S-4 or the Company Pro xy Statement rec eived from the SEC and a dvise Sutherland o f an y oral comm ents with r espect to the Form S-4 or the Company Pro xy Statement rec eived from the SEC. Com pany shall use its re aso nable best efforts to respond as promptly as practicable to any comments from the SEC with respect to the For m S- 4 or the Company Pro xy Statement . N otwithstanding the fore going, prior to filing the Form S-4 (or any amendment or supple m ent thereto) with th e SEC or mailing the Company Proxy S tatement (or any amendment or supple m ent thereto) or r esp onding to any commen ts of the SEC with respect thereto, C ompa ny and Company Operati ng Partnership shall cooperate and provide Sutherland a reasonable opp ortunity to review and comment on such document or response (including the pro posed fina l version of such document or response) and shall give du e consideration to all reasonable changes provided by the other Party. Company shall notif y Sut her land, pr omptly after it receive s notice thereof, of the time of effectiveness of the Form S-4, the issuance of a ny stop order relating thereto or t he sus pension of the qu ali fication for offering or sale in any jurisdiction of the Registered Securities, and Company, Company Oper ating Partner sh ip and Sutherland shall use their reasonable best efforts to have any such stop order or susp ension lifted, reversed or otherwise terminated. C omp any shall also use its reas onable best efforts to take any other action required t o be taken under the Securities Act, the Exchang e Act, any app licabl e foreign or state securities or “blu e s ky” Laws and the rul es and regu latio ns thereunder in connection with the issuance of the Registered Securities, and Sutherland shall furn ish al l informati on concerning Sutherland and its stockhol ders as may be reasonably requested in connection with any such actions.

(b)          If, at any time prior to the receipt of the Company Stockholder Approva l, any information relating to Company or Sutherland, or any of th eir respective Aff iliates, should be disco vered by C ompany or Sutherland which, in the re asonable judgment of Company or Sutherland, should be se t f orth in an amendment of, or a supplement to, any of the Form S-4 or the Company Pro xy Statement , so that any of such docum ents would not include any misstatement of a mater ial fact or omit to state any materi al fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such i nforma tion shall promptly notify the other Parties, and Company and Su therlan d shal l cooperate in the prom pt filing with the SEC of any necessary amendm ent of, or supplement to, the Form  S-4 or the Company Pro xy Statement and , to the extent required by Law, in disseminating the i nfo rmation contained in such amendment or supplement to stockholde rs of Company. Nothing in this Section 7.1(b) shall limit the obligations of any Party under Section 7.1(a) . For purposes of Section 4.27 , Section 5.25 and this Section 7.1 , any information concerning or related to Company, its Aff iliates or the Com pany S tockholders Me etin g will be deemed to have been provided by Company, and any informatio n conce rning or related to Sutherland, i ts Affiliates or the Sut herlan d Stockholders Mee ting will be deemed to have been provided by Sutherland.

(c)          As promptly as practicabl e following the date of this Agreement, Company shall, i n accorda nc e with a pplicable Law and the Company Governi ng D ocuments , establish a record date f or, duly call, give notice of, convene and hold the Company Stockholders Meetin g; provided , that such recor d date shall not be more than ninety (90) days prior to the date of the Company Stockholders Meetin g; provided , further , that t he Company Stockholders Meetin g shall be not less than five (5) Business Days following the Exchange Rati o Announcement . Company shall use its re aso nable best efforts to cause the definitive Company Prox y Statement to be mailed to Company’s s tockholders enti tled to vote at the Company Stockholders Meetin g and to hold the Company Sto ckholders Meetin g as soon as practicable afte r the Form S-4 is declared effect ive under the Securities Act. Company sh all, through t he Company Board, recommend to its stockhol ders that they give the Company Stockholder Approva l, include the Company Board R ecommend atio n in the Company Proxy Statem ent and solicit and use its rea sonable best efforts to obtain the Company Stockholder App rova l, except to the extent that the Company Board shall have ma de an Adverse Recommendation Chan ge as permitted by Section 7.3(b) ; provided , however , that Company’s obligation to dul y call, give notice of, convene and hold the Company Stockholders Meetin g shall be unconditional unle ss this Agreement is terminated in accordance with its terms and shall not be affected by any Adverse Recommendation Chan ge. Notwithstanding the fore going provisions of this Section 7.1(c), if, on a date for which the Company Stockholders Meetin g is scheduled, Company has n ot received pr oxies re presenting a sufficient number of shares of Company Common Stock to obt ain the Company Stock holder Approva l, whether or not a quorum i s present, Co mpany shall have the righ t to mak e one or more successive postpone men ts or adjournments of the Comp any Stockholders Meetin g ( provided , however , that th e Company Stockholders Meetin g shall not be postponed or a djourned to a date that is more than thirty (30) days after the date for which the Company Stockholders Meetin g was originally scheduled (e xcluding any adjournments or postponements required b y a pplicable Law)); provided , further , t he Company Stockholders Meetin g may not be postponed or adj ourned on the date th e C ompany Stockholders Meetin g is scheduled if Company sha ll have received proxies in respect of an aggregate number of shares of Company Common Stock, which have not been withd rawn, such that Company Stockholder Approva l will be obtained at such me eting.

(d)          As promptly as practicable following the date of this Agreement, Sutherland shall , in acco rd ance with a pplicable Law and the Sutherland Gove rnin g Docume nts, establish a record date f or, duly call, give notice of, convene and hold the Sutherland Stockholders Mee ting solely for the purpose of o btaining the Sutherland Stockholder Appr oval (and no other matters shall be submitted at such meeting unless consented to by Sutherland in its sole disc retion); pr ovided , that such record date shall not be more than ninety (90) days prior to the date of the Sutherland Stockholders Mee ting; provided , further , that t he Sutherland Stockholders Mee ting shall be not less than five (5) Business Days following the Exchange Rati o Announcement . Sutherland shall use its re asonable best efforts to cause the definitive Sutherland P roxy Statement to be mailed to Sutherland’ s stockholders e ntitled to vote at the Sutherland Stockholders Mee ting and to hold the Sutherland Stockholders Mee ting as soon as practicable afte r the Form S-4 is declared effect ive under the Securities Act. Sutherland shall, throug h t he Sutherla nd Board, recommend to its stockhol ders that they give the Sutherland Stockholder Appr oval, include the Sutherland Bo ar d Recomm enda tion in the Sutherland Proxy Sta tement and solicit and use its rea sonable best efforts to obtain the Sutherland Stockholder Appr oval, except to the extent that the Sutherland Board shall have made an Adverse Recommendation Chan ge as permitted by Section 7.3(b) ; provided , however , that Sutherland’s obligation to duly call, give notice of, convene and hold the Sutherland Stockholders Mee ting shall be unconditional unle ss this Agreement is terminated in accordance with its terms and shall not be affected by any Adverse Recommendation Chan ge. Notwithstanding the fore going provisions of this Section 7.1(d) , if, on a date for which the Sutherland Stockholders Mee ting is scheduled, Sutherland ha s not received proxies re presenting a sufficient number of shares of Sutherland Common Stock to obtain the Sutherland St ockholder Appr oval, whether or not a quorum i s present, Su therland shall have the r ight to mak e one or more successive postpone men ts or adjournments of the Suth erl and Stockholders Mee ting ( provided , however , that th e Sutherland Stockholders Mee ting shall not be postponed or a djourned to a date that is more than thirty (30) days after the date for which the Sutherland Stockholders Mee ting was originally scheduled (e xcluding any adjournments or postponements required b y a pplicable Law)); provided , further , t he Sutherland Stockholders Mee ting may not be postponed or adj ourned on the date th e S utherland Stockholders Mee ting is scheduled if Sutherland shall have recei ved proxies in respect of an aggregate number of shares of Sutherland Common Stock, wh ich have not been withd rawn, such that Sutherland Stockholder Appr oval will be obtained at such me eting.

(e)          Company and Sutherland will use their respective r easonable best efforts to hold the Company Stockholders Me etin g and the Sutherland Stockhol ders Mee ting on the same date.

Section 7.2            Access to Information; Confidentiality .

(a)          During the period from the date of this Agreement to and including the Suther land Me rger Effec tive Time, each of the Parties shall , and shall ca use each of their respective subsidiaries to, afford to the other Parties and to their respec tive Rep resentatives reasonable access (includin g for purposes of f inalizing the Exchange Ratio pursuant to Section 3.2 ) during normal business hou r s and upon reasonable advance notice to all of their respective properties, offices, books, Contracts, personnel and re cords and , during such period, each of the Parties shall, and shall ca use each of their respective subsidiaries to and shall use their reasonable be st efforts to cause its Representatives to, fur nish reasonably prom ptly to the other Parties (i) any information concern ing such Party or its respective sub sidiaries (including with respect to a ny pending or threatened Action) as th e o ther Party may re asonably reques t and (ii) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities Laws. In connection with s uch reasonable access to information, each of the Parties shall use their reasonabl e best efforts to cause its respective Representati ves to particip ate in meetings and telephone conferences with the other Parties and their Represent atives p rior to th e mailing of any Proxy Statement, prior to e ach of the Comp any Stockholders Meeting and Sutherland Stockholders Meeting, and at such other times as may be reasonably requested. No investigation under this Section 7.2(a) or otherwise shall affect a ny of the representations and warranties of the Parties contained in this A greement or any condition to the obliga tions of the Parties under this Agreemen t. Notw ithstanding the fore going, none of the Parties shall be required b y this Section 7.2 (a) to provide the other Parties or their respective Representa tives with access to or to disclo se information (A)  that is subject to the terms of a confidentiality agreement w ith a third party entered into prior to the d ate of this Agreement or entered into a fter the date of this Agreement in the ordinary c ourse of b usiness consistent with past practi ce ( provided , however , that the withholding Party shall use its reasona ble best efforts to obtain the required consent of suc h third party to such access or dis closur e), (B) the dis clo sure of which would violate any Law applicable to such Part y or any of its Represe ntatives ( provided , however , that wi thholding Party shall use its reasona ble best efforts to make appropriate substitute arra ngements to permit reasonable disclosure not in violation of any Law or duty), (C) that is s ubject to any attorney-client, attorney work product or other legal privilege ( p rov ided , however , that withholding Party shall use its reasona ble best efforts to allow for such access or disclosu re to the maximu m e xtent that does not result in a loss of any such attorney-client, attorney work product or other legal privilege, i ncl uding by means of entry into a cu stomary joint defense agreement that would allevi ate the lo ss of such privilege) or (D) for the purpose of a llo wing Parties or their respective Representa tives to collect samples of soil, air, water, groundwater or building materials. The Pa rties will use their reas onable b est efforts to minimize any disruption to the busin esses of the other Parties and any of their re spective subsidiaries that may result from the requests for access, data and information hereunder. Prior to the Su therland Merger Effective Time, the Parties shall not, an d shal l cause their respective Representatives and Affilia tes not to, cont act or otherwis e communicate wi th parties with which any of t he other Parties or any other of the ir respecti ve subsidiaries has a business relationship regarding the business of the other Parties and their respectiv e subsid iaries or this Agreement and the t ran sacti ons contem plated by this Agreement without the prior written c onsent of such other Party ( provided , that, for the av oidance of doubt, nothing in this Section 7.2(a) shall be deemed to restrict the Parties from contacting suc h partie s in pursuing the bus iness of the Parties operating in the or dinary c ourse).

(b)          Each Party will hold, and will c ause i ts respective Representatives and Affilia tes to hold, any non public info rmation, including any information e xchanged p ursuant to this Section 7.2 , in confidence to the extent required by and in accordance with, and will otherwise comply with, the terms of the Confidentiality Agreement, which shall remain in ful l force and effect pursuant to the terms thereof notwithstanding the execution and delivery of this Agreement or the terminatio n thereof.

Section 7.3            No Solicitation; Acquisition Proposals .

(a)          Exc ept as expressly perm it t ed by this Section 7.3 , neither Sutherland nor Company shall, and Sutherland shall cause each of the Sut herland Subsidiaries and Company shall cause each of the Company Subsidiaries not to , and shall instruct its and their respective Representatives not to, dir ectly or indirec tly, (i) solicit, in itiate or knowingly encourage or f aci litate any inquiry, pro posal or offer with respect to, o r t he announcement, making or completion of, any Acqui sit ion Proposal, or an y inquiry, proposal or of fer that is reasonably li kely to lead to any Acquisition Proposal, (ii)  enter into, continue or otherwise participate in an y negotiations regarding, or furnish to any Person (o the r than Sutherla nd, Com pany or their respective Repres ent atives) any non-pu blic informatio n or data in furtherance of, any Acquisition Proposal, (iii)  enter into any defi nitive acquisition agreement, merger agreement , share e xchange a greement, consolidation ag reement, option agreement , joint v enture ag reement o r partnership ag reement (incl uding any le tter of in t ent or agr eement in principle) (each, an “ Al ternative Acquisition Agr eement ”) relating to any Acquisit ion Proposal (other than an Acceptable C onfidentiality Agreement pursuant to Section 7.3(a) ), (iv) grant any waiver, amendment or release under any stands til l or confidentiality agreemen t or any Takeover Statute ( provi ded , however , that no twithstanding anything contained herein to the contrary, if the Com pany Board or the Suther land Board determ ine after consultatio n with legal counsel, that not doing so would be inconsistent with its duties under applicable Law, Company or the Sutherland, respecti vel y, m ay waive a ny provision of any standstill or confidentiality agreemen t that prohibits a confidenti al proposal being made to such Board (directly or indirect ly thr ough its R epr esentatives) so long as (1) such waive r, amendment or release is limited only to permitting such a confidential proposal and (2) such Party promptly notifies the other Party of the granting such waiver , amendment or release prior thereto), or (v) agree, approve, reco mme nd or propose to do any of the fo regoing. Each of Company and Sutherland shal l, and shall cause each of the Company Subsidiaries and th e Sutherland Subsidia ries, re spectively, and shall u se its commercially reasonable efforts to cause its and their Representativ es to, (A) imm ediately cease a nd cause to be terminated all existing negotiations with any Person and its Representati ves (ot her than Sutherland or a ny of its Re presentatives) conducted heretofore with respect to any Acquisition Proposal, (B) e nforce any confident iality or standstill or provisions of similar ef fec t to which Company or Sutherland, as applicabl e, or any of their subsidiarie s i s a party or of which Company o r Sutherl and, as applicabl e, or any of their subsidiarie s i s a beneficiary and (C) request the prompt return or destruction, to the exte nt required by any confidentiality agreement, of all confidential infor mation previously furnished to any such Person and its Representati ves and immedia tely terminate a ll physical and electronic data room access previously granted to any such Person, its subsidiaries or any o f their respective Rep resentatives. Notwithst anding the fore going, if, at any time following the date of this Agreement and prior to obta ining the Company Stockholder Approva l or the Sutherland Stockholder Appr oval, as applicable, (1) Compan y or Sutherland, as applicabl e, receives a written Acquisition Proposal that w as not the result of a violation of this Section 7.3(a) and (2) the Company Board or the Suther land Board, as ap plic able, determines in good faith (after consultation with ou tside counsel and its financial advisor) that such Acquisit ion Pro posal consti tutes or is reasonabl y likely to lea d to a Superior Proposal and its f ailure to take suc h action would be inconsisten t with its duties as under applicable Law, then the Party receivi ng such Acquis ition Proposal may (a nd may authorize its subsidiaries and its and th eir Represent atives to), after notifying the ot her Party in writing of such de termin ation, (x) furnish non-public information with respect to it and its subsidiaries to the Person making such A cquisit ion Pro posal (and i ts Represent atives) pursuant t o an Acceptable Confidentiality Agreement; provided , that any non-pu blic information provided to any Person given such access sh all hav e previously been provided to the other Party or shall be provided (to the e xtent permitted by applicable Law) to the other Party pri or to or concurren tly wi th the ti me it is provided to such Person and (y) participate in nego tiations with the Person making such Acquisit ion Pro posal (and s uch Person’s Represen tatives) r egardi ng such Acquisitio n Proposal. Notw ithstanding anything to the contrary in this Agreement, each Party and i ts Repres entativ es may contact any Person subm itting an Acquis ition P roposal (that was not the result of a violation of this Section 7.3(a) ) to clarify and understand the terms of an Acquisition Proposal so as to determine whether such Acquisition Proposal consti tutes or is reasonabl y likely to lea d to a Superior Proposal.

(b)          Neither the Company Board nor the Suthe rland Board sh all (A)  fail to make or s hall withdraw (or modif y o r qualify in any ma nner ad ver se to the other Party or publicly propose t o withdra w, modify or qualify in any manner ad ver se to the other Party) the Company Board Re commendation or the Sutherland Board Recommendation, respectively, or the dete rmination of the ad visability to its stockholders of the Merger and other transactio ns cont emplated hereby or make any other public st ate ment in connection with the Company Stockholders Meetin g or Sutherland Stockholders Mee ting that would reasonably be expected to have the same effect of the foregoing, (B) adopt, approve, or publicly recommend, endo rse or otherwise declare advisa ble the adoption of any Acquisition Proposal, (C) f ail to include the C ompany Board R ecommend atio n or the Sutherland Board Recomm enda tion, respectively, in whole or in part in the Company P rox y Statement or the Sutherland Proxy Statem ent, respectively, or any fili ng or amendment or supplement rel ating ther eto , (D) fail to recommend against any pending tender or exchange offer that cons tit utes an Acquisition Proposal within ten (10) Business Da ys after it is l aunched or (E)  fail within three (3 ) B usiness Days of a request by the other P arty following the public announ cement of an Acquisition Proposal, to re affirm the Company B oard Recommendatio n or the Sutherland Board Recomm enda tion, as applicable (each such action set forth in this Section 7.3(b) being referred to herein as an “ Adverse Recom mendati on Chan ge ”), provided , that notwiths tanding anything in this Agreement to the contrary, at any tim e prior to obtaining the Company Stockholder Approva l or the Sutherland Stockholder Appr oval, as applicable, and follow ing compliance with Section 7.3(c) , the Company Board or the Suther land Board may, i f su ch Board determin es in good fa ith (a fter consultation with ou tside counsel and its financial advisor) that the failure t o do so would be inconsistent with its duties under applicable Law, make an Adverse Recomm end ation Chan ge. For the avoidance of dou bt, and notwithstanding anything to the contrary in this Agreement, the Exchange Rat io Announ cement shall not be deemed an Adve rse Recommendation Chan ge.

(c)           Prior to effecting an Adv erse Recommendation Chan ge, (i) Company or Sutherland , as a pplicabl e, shall notify the other Party in writing, at least four ( 4) Business Days prior to effe cting such Adv erse Recommendation (the “ Notice Period ”), of its int ention to eff ect such Adverse Recommendation Chan ge (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Chan ge and, if such Adverse Recomm endation Chan ge is based upon receipt of a Superior Proposal, shall in clude the materia l terms and cond itions of such Superior Proposal and the i dentity of the Per son making such proposal and in clude copies of the curre nt draft s of all material agreements between such Party and the party making such S uperior Propos al and any o ther material docu ments or agreements that relate t o s uch Superior Proposal (it being understood and ag reed that such notice or the public disclosure by su ch Party of such notice shall not in and of itself constitute an Adverse Recommendation Chan ge)), (ii) during the Notice Period, Company or S utherland, as a pplicable, shall nego tiate with the other Party in good faith (to the exten t such other Party wishes to negotiate) to mak e such adjustments to the terms and conditions of this Agreement such that failure to make a n Adverse Recommendation Chan ge would no longer be inconsis tent with such Board’s duties under applic able Law, and (iii) at the end o f t he Notice Period, the Company Board or the Suther land Board, as ap plic able, shall dete rmine in good faith (after consultation with ou tside counsel and financial advisors) tha t failure to take such action would be inconsisten t with such Board’s duties under applic able Law; provided , however , tha t i n the event of any material change to the material terms of such Superior Proposal, Company or Suther land, as applicabl e, shall, in each case, have delivered to the other Party an additional notice consis tent with that described in clause (i) above and the Notice Pe riod shall have re commenced (in which case such Notice Period shall be for two (2) Business Days instead of four (4) Busines s Days).

(d)          Company or Sutherland, a s applicabl e, shall promptly (and in any event, within one (1) Business Day) notify the ot her Party af ter it or any of it s subs idiaries or any of their respective Rep resentatives has receive d any Acquisitio n Proposal or inq uiry, proposal or offer to enter into or s eek ing to have discussi ons or negotiations relating to a possible Acquisition Proposal or the initial request for non -public information concerning Company or Sutherland, as applicabl e, or any of its subsidiaries. S uch notice to the other Party shall indicate the id entity of the Person making such request and inc lude the material terms and cond itions of such Acquisition Proposal, inqui ry, proposal or offe r (including a compl ete copy t hereof if in writing and any related documents or correspondence). Follow ing the date hereof, each Party shall ke ep the other Party reasonably informed o rally and in writing on a current basis (and in any event, within one (1) Business Day) of any materi al developme nts, discussions or negotiations regarding a ny Acquisition Proposal (wheth er made before or aft er the date hereof) i ncl uding providing a cop y of all mat erial documentation (including drafts) or materi al corresp ondence wit h respect thereto and upon the request of other Party shall apprise the oth er Par ty of the status and det ails o f such Acquisition Proposal. Each Party agrees that i t and it s subs idiaries will not enter into any agreement with any Person s ubsequent to the da te here of which prohibits such Party from providing any in format ion to other Party in accordance with, o r from otherwise complying wi th the terms of, this Section 7.3 .

(e)          Nothing contained in this Section 7.3 shall prohibit Company or the Company Boar d, or Suthe rlan d or the Suth er land Board, respe ctiv ely, from (i) is suing a “stop, look a nd l isten” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking and disclosing a pos ition contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Regulati on M-A under the Exchange Act, or (ii) making any disclosu re to th e stockholders of Company or Sutherland, as applicabl e, if, in the good faith judgment of such Board (after consultation w ith outside counsel), failure to so disclose w ould be inconsistent with its duties under applicable Law, and disclosure referre d t o in clauses (i) and (ii) shall not be d eeme d to be a n Adverse Recommendation Chan ge so long as (A) any such dis closure includes the Company Board Recommend atio n or the Sutherland Board Recomm enda tion, as applicable, without an y modification or qualification thereof or co ntinues the prior reco mme ndation of the Company Board or the Suther land Board, respe ctiv ely, and (B) doe s not contain an express Adverse Recommendation Chan ge; provided , that in no even t shall this Section 7.3(e) affect the obligations of Company specified in Section 7.3(b) .

(f)           For purposes of this Agreement:

(i)           “ Acquisition Pro posal ” me ans any proposal, offer , or inquiry from any Person or group of Persons relating to any direct or i ndirect acquisition or pur chase, in one transac tio n or a series of transactions , i ncluding any merger, reorg anization, share exchange, consolidation, tender offer, exchange offe r, stock acq uisition, asset acquisition, business combination, liquidation, dissolution, joint venture or similar transaction, (A) of assets or businesses of Company an d t he Company Sub sidiarie s or Sut herland and the Sutherland Subsidia ries, as applicable, that gener ate 25% or more of the net revenues or net income or that repre sen t 25% or mo re of the consolidated to tal assets (based on fair market value) of Company and the Company Sub sidiarie s or Sut herland and the Sutherland Subsidia ries, re spectively, taken as a whole, immediately prior to such transaction or (B) of 25% or more of an y c lass of cap ita l stock, other equity security or voting power of Company or Sutherland (or any resul tin g parent com pan y of Company or Suthe rland), in each cas e o ther than the transactions contemplated by this Agreement, provided , that n otwithsta nding anything contained herein to the contrary, an Acquisi tion Proposal shall not include the Tende r Offer or any pro posa l, offer or inqu iry relating to the Per mitted Sales or the GMFS Sale.

(ii)          “ Superior Pr opos al ” means an y Acquisition Pro posal made a fter the date hereof (with all percentage s inclu ded in the definition of “Acquisition Proposal” incre ased to 50%), taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, that ( A) if consummated, would be more favorable to the stockholders of Company or Sutherland, respectively , f rom a financial point of view than the Mergers and the other t ransactions contemplated by this Agreement (including any adjustment to the terms and conditions thereof proposed in writing by the other Party in response to any su ch Acq uisition Proposal) and ( B) if accepted, is r easonably likely to be completed on the terms proposed on a timely basis.

Section 7.4            Public Announcements . Except with respect to any Adverse Recommendation Change or any action taken pursuant to, and in accordance with, Section 7.1 or Section 7.3 , so long as this Agreement is in effect, the Parties shall consult with each other before issuing any press release or otherwise making any public statements or filings with respect to this Agreement or any of the transactions contemplated by this Agreement, and none of the Parties shall issue any such press release or make any such public statement or filing prior to obtaining the other Parties’ consent (which consent shall not be unreasonably withheld, delayed or conditioned); provided , that a Party may, without obtaining the other Parties’ consent, issue such press release or make such public statement or filing as may be required by Law, Order or the applicable rules of any stock exchange if it is not possible to consult with the other Party before making any public statement with respect to this Agreement or any of the transactions contemplated by this Agreement. The Parties have agreed upon the form of a joint press release announcing the Merger and the execution of this Agreement, and shall make such joint press release no later than one (1) Business Day following the date on which this Agreement is signed.

Section 7.5            Appropriate Action; Consents; Filings .

(a)           Upon the terms and subject to the conditions set forth in this Agreement, each of the Comp any Parti es and each of the Sutherland Parties shall an d shall cause the o ther Company Subsidiaries and th e other Sutherland Su bsidiaries, re spectively, and their r espective Affiliates to use its reaso nable best efforts to take, or cause to be taken, all a cti ons, and to do, or cause to be done, and to as sist and cooperate with the other party in doing, all things necess ary, proper or advisable under applicab le Law or pursuant to any Cont ract to consummate and make effe ctive, as promptly as practicable, the Mergers and the other t ransactions contemplated by this Agreement, including (i) taking all actions nece ssary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and filing any applications, notices, registrations and requests as may be required or advisable to be filed wi th or submitted to any Governm ent al Authority or Agency in order to consu mma te the tra nsactions contemplated by this Agreement, (iii) obtaining all neces sary or advisable actions or non act ions, waivers, con sen ts and approvals from Governmental Authorities, A gencies or other Persons n ecessary in connec tion wit h the consummation of the Mer gers and the other transactions contemplated by this Agreement and the making of all necessary or advisable registrations and filings (including filings with Gove rnmental A uthorities an d Agencies, if any) and t he t aking of all reasonable steps as may be necessary or advisable to obtain an a ppr oval or waiver from, or to avoid an action or pr oce eding by, an y Governme ntal Authority or o ther Persons necessary in connec tion wit h the consummation of the Mer gers and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c) , defending any lawsuits or other legal proceedings, wh ether judicial or administrative, challeng ing this Agreement or the consummati on of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining or der entered by any court or oth er Governmental Autho rit y vaca ted or reversed, the av oidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law tha t m ay be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasona bly possible, and (v) executing and delivering any additional instruments necessary or advisable to consummate the Mergers a nd the other transactions contemplated by this Agreement and to fully carry out the purp oses of this Agreement; provided , that n either Pa rty will have any obligat ion (A ) to propose, negotiate, commit to or effect, by consent decre e, hold separate order or otherwise, the sal e, divest iture or disposition of any asset s o r businesses of such Party , a ny of its subsidiar ies ( including Company after the Closing) or their Affiliate s or (B )  oth erwise to take or co mmit to take any actio ns that would limit the freedom of such Party, its subsidiaries (in cludi ng Company after the Closing) or their Affiliate s with re spe ct to, or their a bility to retain, on e or more of their businesses , p roduct lines or assets.

 (b)          In connection wi th and without limiting the foregoing Section 7.5(a) , each of the Company Parties and each of the Sutherland Parties shall gi ve (or shall cause the Company Sub sidiaries or the Sutherland Subsidiaries , re spectively, to give) an y notices to third parties, and each of the Co mpany P arties and each of the Sutherland Parties shall us e, and cause each o f their respective Affiliates to use, its reas onable best efforts to obtain any third party consents th at are nec essary , proper or advisable to consummate the Mergers a nd the other transactions contemplated by this Agreement. Each of the Parties will and shall caus e their respective Affiliates to, furnish to t he other su ch necessary information and reasonable assistance as the other may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed wi th any Governmental Authority and will cooperate in respo nding to any inquiry from a Governmental Authority, inc luding promptly inform in g the othe r party of such inquiry, cons ulting in advance before making any presentations or submissions to a Governm ent al Authority, and supplying each other with copies of all material correspondence, filings or communications between e ith er party and any Governmental Author ity with respect to this Agreem ent. To the extent r easonably practicable, the Parties or their Representa tives shall have the right to rev iew in advance and each of the Parties will consult the ot hers on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submit ted to, any Governmental Authority in c onnection with the Merg ers and the other t ransactions contemplated by this Agreement, except that confidential co mpetitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither Company nor Sutherland shall, nor shall they permit their respective Representatives to, partici pate independent ly in any meeting or engage in any substantiv e c onversation with any Governmental Authority in r espect of any filing, i nvestigation or other inquiry without gi vin g the other Party prior notice of such meetin g or conversation and, to the ex tent permitted by applicable Law, without giving the oth er Party the opportunity to at tend o r participate (whether by tel ephone or in person) in any such m eet ing with such Governmental Authority.

(c)          Not withstanding anything to the contrary in this Agreement, in connection wi th obtain ing any approval or consent from any Person (ot her than any Gove rnmenta l Authority) wit h respect to the Merge rs and the other t ransactions contemplated by this Agreement, none of Company Parties, Su therland Parties or any of their respective Rep resentatives, shall be o bligated to pay or commit to pay to such Pe rso n whose approval or co nsent i s being solicit ed any cash or other consideration, mak e a ny accommodation or commitment or incur any lia bility or o the r obligation to such Pe rson. Subject to the imm ediate ly foregoing sentence, the Parties shall cooperate wit h respec t to reasonable accommodations that may be requested or appropriate to obtain su ch consents.

Section 7.6            Notification of Certain Matters; Transaction Litigation .

(a)          The Company Parties and their R epresentatives s hall give prompt notice to the Sutherland Parties, and the Sutherland Partie s and thei r Representatives s hall give prompt notice to the Company Parties, of any not ice or other co mmunication rece ive d by such Party from any Governmental Autho rity in connection with this Agreement, the Mergers or t he other tr ansactions contemplated by this Agreement, or from any Person alleging th at the co nsent o f such Person is or may be require d in co nne cti on with the Mergers or the other tr ansactions contemplated by this Agreement.

(b)           The Company Parties and th eir R epresentatives s hall give prompt notice to the Sutherland Parties, and the Sutherland Partie s and thei r Representatives s hall give prompt notice to the Company Parties, if (i) any representation or warranty made by it cont ain ed in this Agreement becomes untrue or inaccurat e such that it wou ld be reasonable to expect that the applicable closing conditions would be incapab le of being satisfied by the Outside Date or (ii) it fai ls to comply wit h or satisfy in any material res pect any covenant, condition or agreement to be complied with or sati sfied by it under th is Agreement; provided , that n o such no tification shall affect the representations, warranties, covenants or agreements of the Partie s o r the conditions t o the oblig ations of the Parties under this Agreemen t. Notw ithstanding anything to the contrary in this Agreement, the failure by t he Compan y Parties, the Suther land Parties or their respective Representa tives to provide such prompt noti ce under this Section 7.6(b) shall not constitute a breach of covenant for purposes of Section 8.2(b) , Section 8.3(b) , Section 9.1(c)(i) , Section 9.1(d)(i) , Section 9.3(b)(i) or Section 9.3(c)(i) .

(c)          The Company Parties and their R epresentatives s hall give prompt notice to the Sutherland Parties, and the Sutherland Partie s and thei r Representatives s hall give prompt notice to the Company Parties, of any Act ion commenced o r, to suc h Party ’s Knowled ge , threaten ed ag ain st, relat ing to or involving such Party or any Company Subsid iary or S uthe rland Subsidiary, resp ectively, or any of their respective dir ectors, officers or partners that relates to th is Agreement, the Mergers or t he other tr ansactions contemplated by this Agreement. The Company Parties and t heir r espective Repres entatives shall give Sutherland the o pportunity to reasonab ly participate in the defense and settlement of any stockholder litigation against the Company Parties and/or thei r directors, off icer s o r partners relating to thi s A greement and the transacti ons contem plated by this Agreement, and no such sett lement sh all be agreed to without Sutherland’s prior written consent (w hich consent shall not be unreasonably withheld, delayed or conditioned). The Sutherland Parties a nd thei r respective Repres entatives shall give the Company Part ies the opportu nity to reasonab ly participate in the defense and settlement of any litigation against Sutherland and/or their dir ectors, off icer s o r partners relating to thi s A greement and the transacti ons contem plated by this Agreement, and no such sett lement sh all be agreed to without Company’s prior written con sent (w hich consent shall not be unreasonably withheld, delayed or conditioned).

Section 7.7            Indemnification; Directors’ and Officers’ Insurance .

(a)          Without limiting or being l imited by the pro vis ions of Section 7.7(b) , during the period commencing as of the Sutherland Merger Effective Time and ending on the sixth (6 ^{t h} ) anniversary of the Sutherland Merger Effective Time, Company shall (and shall ca use the Surviving Entity to): (i)  indemnify, defend and hold harmless each Indemnified Party against a nd from any costs or expenses (including atto rneys’ fees) , judgments , fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any Action to the extent such A ction a rises out of or per tains t o (x) any acti on or omission or alleg ed action or omissi on in such Indemnifie d Party’s capacit y as a manager, d irector, officer, partner, member, trustee, employee or agent of Sutherland or a ny of the Su therland Subsi diaries, or (y) this Agreement or an y o f the tra nsactions con templated by this Agreement, including the Me rger; and ( ii) pay in adv ance o f the final disposition of any such Action the expenses (includ ing att orne ys’ fees a nd any exp enses incurred by any In demnified Party in connec tion with enforcin g any rights with respect to indemnification) of any Indemnified Party without t he requirement of any bond or other security, in each cas e to the fullest extent permitted by Law, but subject to Company ’s or the Surviving Entity’ s r ece ipt of an undertakin g by or on behalf of such Indemn ifi ed Party to repay such amount if it shall ultimately be determined that such Indemnified Party is not en titled to be indem nified. Notwithstanding anything to the contrary set forth in this Agreement, Company or the S urviving En tity, as ap plic able, (i) shall not settle or compromise or consent to th e entry of any judgment or otherwise seek terminati on with respect to any claim, action, suit or proceeding agains t or in ves tigation of any Ind emn ified Party for which indemnification m ay be sought under this Section 7.7(a) without the Indemnified Party’s prior w ritten consent (w hich consent may not be u nreasonably withheld, delayed or conditioned) unless such settlement, com promise, consent or termination includes an unc onditional r elease of such Indemnified Party from all liability arising out of such claim, action, suit, proceeding or inves tigation, (ii) shal l n ot be liable for any settlement effected without their prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) and (iii) shall not have an y obligation hereunder to any Indemnifie d Party to the ex tent that a court of competent jurisdiction shall determine in a final and non-appealable order that such indemnifica tion i s prohibited by applicable Law, in which case the Inde mni fied Party shall pro mptly refund to Co mpany or the Surviving En tity the am ount of all such expe nses theretofore advanc ed pursua nt hereto.

(b)          Without limiting the foregoing, each of Company and the Surviving E ntity ag rees tha t all rights to i ndemnification and exculpation from liabilities for acts or omissions occurring at o r p rior to the Sutherland Mer ger Effective Time now existing in favor of th e current or former managers, directo rs, officers, partners, members, trustees, employees, agents, fiduciaries or other individuals of Sut her land or any of the Su therland Subsi diaries (th e “ Indemnified Parties ”) as pr ovided in (i) the S utherland Charter, the Sut herland Bylaws or, if ap plicable, similar or ganizational documents or agreements of any Suther lan d Subsidiary (the “ Sutherland Organizati onal D ocuments ”) and (ii) indemnification agreements of Sutherland shall survive th e Merger an d shall continue i n full force and effect in accordance with their terms. For a period of six (6) years following the Sutherland Merger Effective Time, the organizational docume nts of the Company and Surviving Entit y and th e or ganizational docu ments of any applicable Company Subsidiary or Suthe rland Subsidiary shall contain provisions no less favorable with respect to indemnification and limitations on liability of directors and officers than are set forth in the Company Governing Documents or, if applicable, similar or ganizational documents or agreements of any Compan y S ubsidiary, Sutherl and Organizational D ocuments, which provisions shall no t be amended, repealed or otherwise modified for a pe riod of six (6) years following the Sutherland Merger Effective Time in any manner that would af fect adversely the rights thereunder of individuals who, at or prior to the Sutherland Mer ger Effective Time, were Indemnified Parties, unless such modification shall be required by applicable Law and then only to the mi nimu m extent required by applicable Law.

(c)          For a period of six (6 ) y ears after the Sutherland Merger Effective Time, Company shall cause the S ur viving E ntity to maintai n in effect Suthe rland’s current direct ors’ and o fficers’ liability insurance covering each Person currently covered by Suther land’s directors’ and officers’ liability insurance policy for acts or omissions occurring prio r t o and through the Sutherland Merger Effective Time; provided , that in lieu of such obligation, (i) the Surviving Entity may substi tute therefor pol icies of an insurance company with the same or be tter rat ing as Sutherl and ’s current insura nce carrie r the material terms of which, including coverage and amou nt, are no less favorable in any material respect to such directors and officers than Sutherland’s existing polic ies as of the date hereof or (ii) in consultat ion with C ompany, Sutherland may obtain extended reporting period coverage under Sutherland’s existing insur ance progr ams (to be effective as of the Sutherland Merger Effective Time) for a period of six (6) y ears after the Sutherland Merger Effective Time for a cost not in excess of three times the current annual premiums for such insurance; and provided , further , that in no event shall the Surviving Entity be require d to pay annual p remiums for insurance under this Section 7.7(c) in excess of 300% of the most recent annual premiums paid by Sutherland for such purpose , it being understood that if the annual premiums of such insurance coverage exceed such amount, the Surviving Entity shall neve rtheless be oblig ated to provide such coverage as may be obtained for such 300% amount.

(d)          If Company or the Surviving En tity or any of their respective suc cessors or assigns (i) consolidates wi th or merges with or into any oth er Person an d s hall not be the contin uing or surviving corporation, p art nership or other entity of such con sol idation or merger or (ii) liquidate s, dissolv es or winds-up, or transfers o r c onveys all or substanti all y all of its pr operties and assets to any Person, then, and in each s uch ca se, proper provision shall be made so that the successors and assigns of Company or the Surviving En tity, as ap plic able, assume the obligations set forth in this Section 7.7 .

(e)          Company shall cause the Surv iving E ntity to pay all reasonable expen ses, including reasona ble atto rn eys’ fees, that may be incurred by any Indemnified Party in enforc ing the obligation s provided in this Section 7.7 .

(f)           The provisions of this Section 7.7 are intended to be for the express benefit of, and shall be enforceable by, each Indemnified Party (who are intended third par ty beneficiaries of this Section 7.7 ), his or her heirs and his or her pe rsonal representat ive s, shall be binding on all successors and assigns of Sutherland, Company and the Surviving Entity and shall not be amended in a manner that is adverse to the Indemnified Party (includin g his or her succe s sors, assi gns and heirs) without the prior written consent of the Indemnified Party (includin g such successors, assigns an d heirs) affected thereby. The exculpation and indemnification provided for by this Section 7.7 shall not be deemed to be exclusive of any other rights to which an Indemnified Party is entitl ed, whether pursua nt to applicable Law, Contract or otherwise.

Section 7.8            Stock Exchange Listing . Company shall use its reasonable best efforts to cause (i) the Company Common Stock to be issued in connection with the Sutherland Merger and (ii) the Company Common Stock that may be issued to holders of Company OP Units to be issued in connection with the Partnership Merger upon exchange thereof, in each case, to be approved for listing on the NYSE, subject to official notice of issuance, at the Sutherland Merger Effective Time.

Section 7.9            Dividends .

(a)           In the event t hat a distribution with respect to the shares of Company Common Stock permit ted under the terms o f this Agreement has a record date prior to the Sutherland Merger Effective Time and has not been paid prior to the Closing Date, such distribu tion shall b e paid to the holders of such shares of Company Common Stock on the Closing Date immedia tely pr ior to the Su therland Merger Effective Time. In the event that a dist ribution with respect to the shares of Sutherland Common Stock per mitted under the terms o f this Agreement has a record date prior to the Sutherland Merger Effective Time and has not been paid prior to the Closing Date, such distribu tion shall b e paid to the holders of such shares of Sutherland Common Stock on the Closing Date immediately pr ior to the Su therland Merger Effective Time. Sutherland shall coordin ate with Compa ny the declaration, se tting of record dates and payment dates of dividends on Sutherland Common Stock so that holders of Sutherla nd Common Stock and Sutherland OP Units (i) do not receive dividend s on both Sutherland Common Stock and Company Common Stock received in the Sutherland Merger, or Suthe rland OP Units an d Com pany OP Units received in the Partnership Merger, as appl icable, in respect of a single calendar quarter or fail to receive a divide nd on either Sutherland Common Stock or Company Common Stock rec eived in the Merger, or Sutherland OP Un its an d Com pany OP Units received in the Partnership Merger, as appl icable, in respect of a single calendar quarter or (ii) do not receive both a dividend permitted by the proviso to Section 6.2(b)(iii) on Sutherland Common Stock or Sutherland OP Units and a dividend permitted by the proviso to Section 6.1(b)(iii) on Company Common Stock or Com pany OP Units received in the Mergers or fail to receive either a di vidend permitted by the proviso to Section 6.2(b)(iii) on Sutherland Commo n Stock or Sutherland OP Units or a dividend permitted by the proviso to Section 6.1(b)(iii) on Company Common Stock, or Su therland OP Units an d Com pany OP Units received in the Partnership Merger, as appl icable, received i n the Mergers.

(b)          In the event that either Company or Sutherland shall declare or pay any dividend or othe r d istribution that is expressly permitted pursuant to the proviso at the end of Section 6.1(b)(iii) or Section 6.2(b)(iii) , respectively, it s hall no tify the other Party at least twenty (20)  days p rior to the Closing Date, and such othe r Party shal l be entitled to declar e a dividend per share payable (i) in the case of Sutherland, to holders of S utherland Common Stock or Sutherland OP Units, in an amount per share of Sutherland Common Stock or per Sutherland OP Unit equa l to the product of (A)  the dividend declared by Company with respect to eac h share of Company Common Stock by (B)  the Exchange Ratio a nd (ii) in the case of Com pany, to holders of Comp any Com mon Stock and Company OP Units, in an amount per share of Company Common Stock or per Company OP Unit equal t o th e quotient obtai ned by dividing (x) the dividend declared by Sutherland with respect to each share of Sutherland Common Stock by (y) the Exchange Ratio. The record date and time and payment date and time for any dividend payable pursuant to this Section 7.9(b) shall be prior to the Closing Date.

Section 7.10         Voting of Shares . The Sutherland Parties shall vote all shares of Company Common Stock beneficially owned by it or any of the other Sutherland Subsidiaries as of the record date for the Company Stockholders Meeting, if any, in favor of approval of the issuance of Company Common Stock pursuant to this Agreement.

Section 7.11          Takeover Statutes . The Parties shall use their respective reasonable best efforts (a) to take all action necessary so that no Takeover Statute is or becomes applicable to the Mergers or any of the other transactions contemplated by this Agreement and (b) if any such Takeover Statute is or becomes applicable to any of the foregoing, to take all action necessary so that the Mergers and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effect of such Takeover Statute or the restrictions in the Company Charter or the Sutherland Charter (“ Charter Restrictions ”) on the Mergers and the other transactions contemplated by this Agreement. No Party shall take any action to exempt any Person (other than the other Parties or their respective affiliates) from any Takeover Statute of any jurisdiction or the Charter Restrictions that may purport to be applicable to the Mergers or any of the other transactions contemplated by this Agreement or otherwise cause any restrictions in any Takeover Statute or the Charter Restrictions not to apply to any such Person.

Section 7.12          Obligations of the Parties . Sutherland shall take all actions necessary to cause the other Sutherland Parties to perform their obligations under this Agreement and to consummate the Mergers on the terms and conditions set forth in this Agreement. Company shall take all actions necessary to (a) cause the Company Parties to perform its obligations under this Agreement and to consummate the Mergers on the terms and conditions set forth in this Agreement, and (b) ensure that, prior to the Sutherland Merger Effective Time, Merger Sub shall not conduct any business or make any investments or incur or guarantee any indebtedness other than as specifically contemplated by this Agreement.

Section 7.13          Related Party Agreements .

(a)          Except a s set forth in this Section 7.13 of the Company Disclosure Letter, Company shall cause all c on tracts ( including, for the avoidanc e of doub t, the Company Related Party Agree ments) between any former, curre nt or future officers, directo rs, partners, stockholders, managers, members, affiliates or agents of Company or any Co mpany Subs idiary, on the one hand, and Comp any or any Company Subs idiary, on the other hand, to be settled or terminated on or prior t o t he Closing, wi tho ut any furthe r oblig ations, liability or payments (other than cus tom ary indemnification obligations) by or on behalf of Company as of the Closing. For the avoidance of dou bt, the foregoing shall not require the settlement or termination of an agreem ent that is solely be tween Comp any and/or any entities that wi ll r ema in Company Subsidiaries after the Closing.

(b)           Except as set for th in t his Section 7.13 of the Sutherland Disclosure Lette r, Sutherland shall cause al l contracts ( including, for the avoidanc e of doub t, the Sutherland Related Party Ag reements) between any former, curre nt or future officers, directo rs, partners, stockholders, managers, members, affiliates or agents of Sutherland or any Sutherlan d Subsidiary, on the one hand, and Sutherland or any Sutherlan d Subsidiary, on the other hand, to be settled or terminated on or prior t o t he Closing, wi tho ut any furthe r oblig ations, liability or payments (other than cus tom ary indemnification obligations) by or on behalf of Sutherland as of the Closin g. For the avoidance of dou bt, the foregoing shall not require the settlement or termination of an agreem ent that is solely be tween Suth erland and/or any entit ies that wi ll r ema in Sutherland Subsidiaries aft er the Closing.

Section 7.14          Corporate and Entity Names . Prior to the Closing, the Company Board shall approve the change of the name of Company effective as of the Merger Effective Time to “Sutherland Asset Management Corporation” in accordance with MGCL Sections 2-605 and 3-109, without any further action by any of the holders of Company Common Stock. Immediately before the Closing, Company shall change the corporate and entity names of each Company Subsidiary to names to names selected by Sutherland and shall change any domain names of Company and Company Subsidiaries to names selected by Sutherland, but in each case not including the word “ZAIS” or any derivative thereof, or any terms confusingly similar thereto. Prior to the Closing Date, Company shall, at its own cost and expense, remove any signage from the Company Leased Real Property that includes any marks, names, logos, domain names or trade dress that include in whole or in part the term “ZAIS”, or any derivative name or variation thereof that is confusingly similar to such name. As of the date that is ten (10) Business Days following the Merger Effective Time, Company will cease all use, and will cause each Company Subsidiary to cease all use, of the “ZAIS” name, any derivative thereof or any terms confusingly similar thereto, and none of Surviving Entity or any of its subsidiaries will ever use the “ZAIS” name, any derivative thereof or any terms confusingly similar thereto; provided , that nothing in this Section 7.14 shall (i) require any amendment to any financing statement, deed or other similar public filing or recorded instrument made in the name of Company or any Company Subsidiary as a secured party, or (ii) prevent the Surviving Entity or any Sutherland Subsidiary from (A) informing third parties of the change in name, (B) using written materials marked with such names prior to the Closing Date, or (C) using the “ZAIS” name as reasonably necessary or advisable for historical purposes to describe the former legal name of Company or any Company Subsidiary or the former advisor to Company or any Company Subsidiary for the period prior to the Closing Date.

Section 7.15          Director Resignations . Company shall use its reasonable best efforts to cause to be delivered to Sutherland a letter of resignation in the form of Exhibit C executed by each director of Company, Company Operating Partnership and each Wholly Owned Company Subsidiary in office immediately prior to the Merger Effective Time (other than the Company Designee, if applicable), such resignations to be effective as of the applicable Merger Effective Time, to the extent that such director has not previously delivered such resignation.

Section 7.16          Tax Matters .

(a)          Company shall (i)  use its re asonabl e best e fforts to obtain the opinion of counsel refe rred to in Section 8.2(e) , (ii) deliver to Clifford Chance LLP a tax representation letter, date d as of the Closing Date and signed by an officer of Company, containing represe ntation s of Company reasonably necessar y or app ropriate to enable Cl iff ord Chance LLP to render the tax opinion described in Section 8.2(e) and (iii) deliver to each of Sidley Austin LLP and Alston & Bird LLP a tax rep resentation letter , date d as of the Closing Date and signed by an officer of Company and Company Operati ng Partnership, containing representation s of Company and Company Operati ng Partnership reasonably necessary or app ropriate to enable ea ch of Sidley Austin LLP and Alston & Bird LLP to render the tax opinions described in Section 8.2(f) and Section 8.3(f) .

(b)          Sutherland shall (i) use its reasonabl e best e fforts to obtain the opinion of counsel refe rred to in Section 8.3(e) , (ii) deliver to Clifford Chance LLP a tax representation letter, date d as of the Closing Date and signed by an officer of Sutherland and Sutherland O perating Partnership, containing representation s of Sutherland and Sutherland O perating Partnership reasonably necessary or app ropriate to enable Cl iff ord Chance LLP to render the tax opinion described in Section 8.3(e) , and (iii) deliver to each of Sidley Austin LLP and Alston & Bird LLP a tax rep resentation letter , date d as of the Closing Date and signed by an officer of Sutherland and Sutherland O perating Partnership, containing representation s of Sutherland and Sutherland O perating Partnership reasonably necessary or app ropriate to enable ea ch of Sidley Austin LLP and Alston & Bird LLP to render the tax opinions described in Section 8.2(f) and Section 8.3(f) .

(c)          Sutherland and Company shall reasonably cooperate in the preparation, execution and filing of all returns, questionnaires, applications or other documents regardin g a ny real property transfer or gains, sales, use, trans fer , value added, stock transfer or stamp taxes, any transfe r, record ing, registration and other fees and any similar taxes that become payable i n conn ection with the transactions contemplated by this Agreement (together with an y related interest, penalties or additions to such taxes, “ T ransfer Taxes ”), a nd sh all reasonably co operate in attempting to minimize the amount of Transfer Taxes.

(d)          Each of Sut herland and Co mpany shall use its reaso nable best efforts to cause the Sutherland Merger to qu alify as a reorganization within the meaning of Section 368(a) of the Code, including by executin g an d delivering the officers’ certificates referred to herein and reporting consis tently for all federal, state, and local income Tax or other purposes. Non e of Su therland or Company shall take any a cti on, or fail to take any actio n, th at would reasonab ly be expected to cause the Sutherland Merger to fail t o qualify as a reo rganization within the meaning of Section 368(a) of the Code.

Section 7.17          Company Board and Officers . The Company Board shall take or cause to be taken such action as may be necessary, in each case, to be effective as of the Sutherland Merger Effective Time, to (i) increase the number of directors to six (6) and to cause (x) the individuals set forth on Section 7.17 of the Sutherland Disclosure Letter and the other individuals designated by Sutherland (together, the “ Sutherland Designees ”) and (y) David L. Holman (the “ Company Designee ”) to compose the entire Company Board (such persons, and any replacement designees selected, the “ Board Designees ”), (ii) appoint Thomas E. Capasse as Chairman of the Board and (iii) appoint the Board Designees so identified by Sutherland to the various committees of the Board. Sutherland shall cause a majority of the Board Designees to be independent as determined under the applicable NYSE independence rules. If any of the Sutherland Designees or the Company Designee is not able or willing to serve on the Company Board, as of the Sutherland Merger Effective Time, Sutherland shall select (in the case of the Sutherland Designees), and Company shall select with Sutherland’s consent (in the case of the Company Designee), within a reasonable period of time prior to the Sutherland Merger Effective Time, a replacement, and the Company Board shall appoint such replacement as a member of the Company Board, as of the Sutherland Merger Effective Time. Effective as of the Sutherland Merger Effective Time, the Company Board shall elect as officers the individuals set forth on Section 7.17 of the Sutherland Disclosure Letter with the respective offices set forth thereon. If any of such persons is not able or willing to serve as an officer of Company as of the Merger Effective Time, Sutherland shall select a replacement, and the Company Board shall elect such replacement to such office, as of the Sutherland Merger Effective Time.

Section 7.18          Permitted Sales and GMFS Sale . Prior to the Closing, Company shall use its reasonable best efforts to effect the Permitted Loan Sale and the GMFS Sale. Neither Company nor any Company Subsidiary shall enter into any Alternative Acquisition Agreement (which for the avoidance of doubt shall not include an Acceptable Confidentiality Agreement) with respect to the (i) Permitted Loan Sale if not on terms and conditions substantially consistent with the terms and conditions set forth on Section 1.1(c) of the Company Disclosure Letter or (ii) the Permitted Securities Sale or the GMFS Sale, in each case without the prior written consent of Sutherland (which consent shall not be unreasonably, withheld, delayed or conditioned).

Section 7.19          Tender Offer .

(a)           Provided th at none of th e events or conditions set forth in Exh ibit K shall have occurr ed and be existing and shall not have been waived in writing by Company (the conditions set forth i n Exhibit K , the “ Tender Offer Conditions ”), no later than two (2) B usiness Days following the condition in Section 8.1(b) having been satisfie d, Comp any shall be permitted to comme nce (within the meaning of Rule 14d-2 under the Exchan ge Act) the Tender Of fer. Compan y shal l not increa se the Tend er Offer Funds or chang e the form of consider ation payable in the Tender Offer, or amend any term of the Te nde r Offer in a manner wh ich is materi ally adverse to Sutherland; provided that t o the exte nt permitted by Law and as consented to in writ ing by Sutherland, Company may waive any of the Tender Offer Conditions.

(b)          Co mpany shall file with t he SEC a T ender Offer Statemen t on S chedule TO with respect to the Tender Offer on the date th at the Tender Offer is commenced, which Tender Offer Statement shall include an offer to purchas e, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, coll ect ively, the “ Tender Offer Documents ”) an d cause the Tender Off er Documents to b e disseminated to the h olders of Company Common Stock in acc ordance with the appl icable requirements of the U.S. federal securit ies Laws. Company shall cause the Ten der Offe r Documents to c omply in all material r espects with the applicable U.S. federal securities Laws and, on the date first file d with the SEC and on the date first p ubli shed, sent or given to the holders of Com pany Common Stock and on the Acceptance Date, shall not contain any unt rue statement of a material fact or omit to state any materi al fact required to be stated therein or necessary in order to ma ke the statement s ther ein, in light of the circumstances under which they were made, not misleading. Company shall promptly corr ect any information set forth in the Tender Offer Documents if a nd to the extent that i t shall have become false or misleading in any materi al respect, and to cause the Tender Offer Documents as s o corrected to be filed with the SEC and disseminated to the hol ders of Company Common Stock to the extent required by a pplicable Law. Sutherland and its co uns el shall be gi ven the opportunity to review and comment on the Tender Offer Documents prio r to their being filed with the SEC and to review any comme nts received from the SEC with respect to such Te nder Offer Documents, and Company agrees to give reas onable c onsideration to the comments of Sutherland and its counsel. Company a nd its counsel wil l give S utherland and its counsel a reasonabl e opportunity to participate in all communications with the SEC and its staff, includin g me etings and tele phone conf erences related to the Schedule TO and the Tender Offer Documents.

(c)          Sub ject to the terms and conditions thereof, the Tender Offer shall remain o pen until mid night, New York City time, at the end of the twentieth (20 ^th ) Business Day beginning with (and includi ng) the date that th e Tender Offer is commenced ( determined in accordance with Rule 14d-1(g) (3) under the Exchange Act) (the “ Expirat ion Date ”), unless C ompany shall ha ve extended the per iod of time for which the Tender Offer is open pursua nt to, and in accordance with, the following provisions of this sentence or as may be required by ap pli cable Law, in which event the ter m “ Expiration Date” shall mean the latest tim e and date as the Tender Offer, as so extende d may expire ;  provided ,  however , that Company shall extend the Te nder Off er for one or mor e periods (bu t not in ex cess of three) of not more than five Business Days each if, at t he scheduled E xpiration Date, any of the Tender Offer Conditions sha ll not have been satisfi ed or waived.

(d)          Subject to the t erm s and conditions set forth in this Agreement and to satisfacti on or waiv er of all the Tender Of fer Conditions as of the Expiration Date, Company shall promptly after the Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) all shares of Company Com mon Stock that h ave been validly tend ered and not withdrawn pursuant to the Tender Offer (the date on w hich such acc eptance for payment occurs, the “ Acceptance Date ”).

Section 7.20          Conduit Agreements . On or prior to the Closing, Company shall cause all contracts entered into by the Conduit to be settled or terminated (subject to any obligations that survive after termination pursuant to the terms of such contracts) and all licenses obtained from Governmental Authorities by the Conduit to be surrendered, subject to all post-surrender requirements as mandated by applicable Law. The Parties recognize that the implementation of such surrender requirements shall extend beyond the Closing.

Article 8

CONDITIONS

Section 8.1            Conditions to Each Party’s Obligation to Effect the Mergers . The respective obligations of the Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement on the Closing Date are subject to the satisfaction or, to the extent permitted by Law, waiver by each of the Parties at or prior to the Sutherland Merger Effective Time of the following conditions:

(a)           R egulatory Authorizations . All consents, authorizations, orders or approvals of each Governme nta l Authority or Agency necessary for the c ons ummation of the Merge rs and the other transactions contemplated by this Agreement set forth in Section 8.1(a) of the Company Disclosure Let ter and Section 8.1(a) of the Sutherland Disclosure Letter shall have been obtained and any applicable waiting periods in respect thereof shall have expired or been terminated.

(b)           Stockhold er Approvals . The Company Stockholder Approval shall have been obtained in a ccordance with applicable Law and the Company Charter and Company Bylaws. The Sutherl and Stockholder Approv al shall have been obtained in a ccordance with applicable Law and the Sutherland Charte r.

(c)           N o Injunc tions or Restraint s . No Order issu ed by any Governmen tal Au thority of com petent jurisdiction pro hibiting consummation of the Mergers shall be in effect, a nd no La w shall have been enacted, ente red, promulgated or enforced by any Government al Authority after the date of this Agreem ent that, in any case, prohibits, restrains, enjoins or makes illegal the consumma tio n of the Merge rs or the other transactions contemplated by this Agreement.

(d)           Form S-4 . The Form S-4 sha ll have be en decl ared effe ctive by the SEC under the Securities Act and no stop or der suspending the effectiv eness of the Form S-4 shall have been issu ed by the SEC and no proceedings for th at p urpose shall have been initiated by the SEC that have not been withdr awn.

(e)           Stock Exchange Listing . (i) The Company Common Stock to be is sued in connection wi th the Sutherland Merger and (ii) th e Company Common S tock that may be issued to holders of Company OP Units to be issued in connection wi th the Partnership Merger upon excha nge thereof, in eac h case, shall have been approved for listing on the NYSE, subject to official not ice of issuance.

(f)            Tender Offer . Company shall h ave commenc ed the Tend er Offer and either (A) t he Acceptance Date shall have oc curred or (B) Co mpany shall have wit hdr awn the Tend er Offer.

Section 8.2            Conditions to Obligations of the Sutherland Parties . The obligations of the Sutherland Parties to effect the Mergers and to consummate the other transactions contemplated by this Agreement are subject to the satisfaction or, to the extent permitted by Law, waiver by Sutherland, at or prior to the Sutherland Merger Effective Time, of the following additional conditions:

(a)           Representations and Warranties . (i) The representations and w arranties of the Company Parties set forth in the Fundamental Representations (except Section 4.5(a) (Capital Structure), Section 4.20 (Brokers), Section 4.21 (Opinion of Financial Advisor) and Section 4.22 (Takeover Statutes)), shall be true and correct in all material respects as of the date of this Agreement and as of the Sutherland Merger Effective Time, as though made as of the Sutherland Merger Effective Time, (ii) the representations and warranties set forth in Section 4.5(a) (Capital Structure) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Sutherland Merger Effective Time, as though made as of the Sutherland Merger Effective Time, and (iii) each of the other representations and warranties of the Company Parties contained in this Agreement shall be true and correct as of the date of this Agreement and as of the Sutherland Merger Effective Time, as though made as of the Sutherland Merger Effective Time, except (A) in each case, representations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) where the failure of such representations or warranties to be true and correct (without giving effect to any materiality or Company Material Adverse Effect qualifications set forth therein), individually or in the aggregate, does not have and would not reasonably be expected to have a Company Material Adverse Effect.

(b)           Performance of Covenants and Obligations of the Company Parties . The Company Parties shall have pe rformed in all m aterial respects all obligations, and complied in all material respects with all agreements and covenants, required to be performed by them under this Agreement on or prior to the Sutherland Me rge r Effective T ime.

(c)           Absence of Material Adverse Change . On the Closing Date, no circumstance shall exist that constitutes a Company Material Adverse Effe ct.

(d)           Delivery of Certificate . C ompany shall h ave deliver ed to Suthe rland a certificate, dat ed the date o f the Closi ng and signed by its chi ef execu tive officer and chief financial officer on behalf of Company, certifying to the ef fect th at the conditions set forth in Section 8.2(a) , Section 8.2(b) and Section 8.2(c) have been satisfied.

(e)           REIT Opinion . Sutherland shal l ha ve receive d a written opinion of Clifford Chance LLP, or other counsel to Company s ati sfactory to Suthe rland, d ated as of the C losing Dat e and in form and substance rea sonably satisfactory to Sutherland, to the effect tha t, commenc ing with Company’s taxable year that e nded on December 31, 2011, Company has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its a ctual method of oper ation has enabled Company to meet, through the Sutherla nd Merger Effective T ime, the requirements for qualif ication and taxation as a REIT under the Code, which op inion will be s ubje ct to customary exceptions, assumptions and qualifications and based on customary representations contained in an officer’s certificate executed by Compa ny and Compa ny Operating Partnership.

(f)            Section 368 Opinion . Suthe rland shall have receive d a written opinion of Sidley Austin LLP, tax counsel to Sutherland, da ted as of the C losing Dat e and in form and substance rea sonably satisfactory to Sutherland, to the effect tha t, on the basis of facts, representations and assumptions set forth or referred to in such opinio n, the Sutherland Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion will be s ubje ct to customary exceptions, assumptions and qualifications. In rendering such opinion, Sidley Austin LLP may rely upon the tax representation letters de scri bed in Section 7.16 .

(g)           Board Designees . Each of the Board Designee s shall have be en elected to the Company Board effective as of the Sutherlan d Merger Effective T ime.

(h)           Permitted Loan Sale . The P erm itted Loan Sale sh all hav e been consummated.

(i)            Delivery of Advisor Certificate . Advisor shall have delivered to Compa ny and Sutherland a cert ificate, dated the date o f Closing a nd signed by an auth orized o fficer of Advisor, certifying that the represe ntations and warranties set forth in Article II of the Company Termination Agreement shall b e true and correct as of the date of this Agreement and as of the Suthe rland Merg er Effective T ime, as though made as of the Su therland Merger Effective T ime, except (A) in each case, re presentations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B)  where the failure of such representations or warranties to be true and cor rect (without giving effect to any materiality or Company Material Adverse E ffect qualifications set forth ther ein), individually or in the agg regate, does not have and would not reasonably be expected to have a Company Material Adverse Effect.

Section 8.3            Conditions to Obligations of the Company Parties . The obliga tions of the Co mpany Parties to effect the Mergers and to c onsummate the other transactions contemplated by this Agreement are subject to the satisfaction or , to the extent permitted by L aw, waiver by Company at or p rio r to the Sut herland Mer ger Effective Ti me, of the following additional conditions:

(a)           Representations and Warranties . (i) The representations and warranties of the Sutherland Parties set forth in the Fundamental Representations ( except Section 5.5(a) (Capital Structure), Section 5.20 (Brokers), Section 5.21 (Opinion of Financial Advisor) and Section 5.22 (Takeover Statutes)) shall be true and correct in all mater ial respects as of the date of this Agreem ent and as of the Suthe rland Merg er Effective T ime, as though made as of the Su therland Merger Effective T ime, (ii) the representations an d warranties set forth in Section 5.5(a) (Capital Structure) shall be true and correct in all but de minimis respects as of the date of this Agreement and as of the Suthe rland Merg er Effective T ime, as though made as of the Su therland Merger Effective T ime, and (iii) each of the other repre sentat ions and warranties of the Sutherland Parties contained in this Agreement s hall be true and c orrect as of the date of this Agreement and as of the Suthe rland Merg er Effective T ime, as though made as of the Su therland Merger Effective T ime, except (A) in each case, re presentations and warranties that are made as of a specific date shall be true and correct only on and as of such date, and (B) in the case of clause (iii) where the failure of su ch rep resentations or warranties to be true and cor rect (without giving effect to any materiality or Sutherland Material Advers e Effect qualifications set forth ther ein), individually or in the agg regate, does not have and would not reasonably be expected to have a Sutherland Material Adverse Effect.

(b)           Performance of Covenants or Obligations of the Sutherl and Parties . The Suth erland Parties sha ll have performed in all m aterial respects all obligations, and complied in all material respects with all agreements and covenants, required to be performed by them under this Agreement on or prior to the Sutherland Me rge r Effective T ime.

(c)           Absence of Material Adverse Change . On the Closing Date, no circumstance shall exist that constitutes a Sutherland Material Adverse E ffect.

(d)           Delivery of Certificate . S utherland shal l have deli ver ed to Compa ny a certificate, dated the date o f the Closi ng and signed by its chi ef execu tive officer and chief financial officer on behalf of Sutherland certifying to the effect that the conditions set forth in Section 8.3(a) , Section 8.3(b) and Section 8.3(c) have been satisfied.

(e)           REIT Opinion . Company shall h ave received a written opinion of Clifford Chance LLP, or other counsel to Sutherlan d s atisfactory to Co mpany, date d as of the Clos ing Dat e and in form and substance rea sonably satisfactory to Company, to the effect that, commenc ing with Sutherland’s taxable year tha t ended on December 31, 2013, Sutherland has been organized and operat ed in conformity with the requirements for qualification and taxation as a REIT under the Code and its a ctual method of oper ation has enabled Sutherland to meet, through t he Sutherla nd Merger Effective T ime, the requirements for qualif ication and taxation as a REIT under the Code, which op inion will be s ubje ct to customary exceptions, assumptions and qualifications and based on customary representations contained in an officer’s certificate executed by Suthe rland and Su therland Ope rating Partnership.

(f)            Section 368 Opinion . Compa ny shall have received a written opinion of Alston & Bird LLP, tax counse l to Company, dat ed as of the Clos ing Dat e and in form and substance rea sonably satisfactory to Company, to the effect that, on the basis of facts, representations and assumptions set forth or referred to in such opinio n, the Sutherland Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, which opinion will be s ubje ct to customary exceptions, assumptions and qualifications. In rendering such opinion, Alston & Bird LLP may rely up on the tax represe ntation letters de scri bed in Section 7.16 .

(g)           FIRPTA Certificate . On the Closing Date, prior to the Me rgers, Suthe rland shall del iver to C ompany a du ly executed certi ficate, dated as of the Closing Dat e, confirming that Sutherland is not a United St ates real p roperty holding corporation within the meaning of Section 897(c) of the Code.

Article 9

TERMINATION, FEES AND EX PENS E S, AMENDMENT AND WAIVER

Section 9.1            Termination . This Agreement may be terminated and the Mergers and the other transactions contemplated by this Agreement may be abandoned at any time prior to the Sutherland Merger Effective Time, notwithstanding receipt of Company Stockholder Approval or Sutherland Stockholder Approval (except as otherwise specified in this Section 9.1 ):

(a)          by mutual written consent of e ach of Sutherland and Company;

(b)          by either Sutherland or Company:

(i)           if the Sutherland M erg er shall not hav e occurred on or b efore 11:59 p.m. New York t ime on December 31, 2016 (the “ Outside Date ”); provided , that the right to terminate this Agreement pursuant to this Section 9.1(b)(i) shall not be available to any Party if the failure of such Pa rty (a nd (A) in the case of S utherl and, including the failu re of the ot her Suther land Parties, and (B) in the case of Compan y, including the failure of the ot her Compan y Parties) to perform or comply in all m aterial respe cts with the obligations, covenants or agreements of such Party set fo rth in this Agreeme nt sha ll have been the c ause of, o r resulted in, the failure of the Sutherland Merger to be consumm ated by the Outsid e Date;

(ii)          if any Government al Authority of compe tent jurisdiction shall have issued an Order permanently restraining o r othe rwise prohibiting the tr ans actions contemplated by this Agreement, and such Order shall have bec ome final a nd non appealable; provided , that the right to terminate this Agreement under this Section 9.1(b)(ii) shall not be available to a Party if the issuance of such f inal, non-appealable Order was primarily due to the failur e of such Party (and (A) in the case of S utherl and, including the failu re of the ot her Suther land Parties, and (B) in the case of Compan y, including the failure of the ot her Compan y Parties) to perform any of its obligat ions, covenants or agreements under this Agreem ent ; or

(iii)         if either (A) the Company St oc kholder Approval sh all not have been obtained at the Company Stockholders Meeting du ly convened therefor or at an y adjournment or postpo nem ent thereof at whic h a vote on the approval of this Agreement was taken or (B) the Sutherland Stockhold er Approval shall not have been obtained at the Sutherland Stockholders Meeting duly convened therefor or at an y adjournment or postpo nem ent thereof at whic h a vote on the approval of this Agreement was taken; provided , that the r ight to terminate this Agreement under this Section 9.1(b)(iii) shall not be available to a Party if failure to receive the Compa ny Stockholder Approval or the Sutherland Stockholder Appr oval was primarily due to the failur e of such Party to perform any of its obl igatio ns, covenants or agreements under this Agreem ent ;

(c)          by Sutherland:

(i)           if an y of the Compa ny Parties shall have brea ched or failed t o perform any of its re presentations, warranties, obligations, covenants or agreements set forth in this Ag reement, which breach or fail ure to pe rform, either i ndi vidually or in the aggregate, if continu ing at the Sutherland Merger Effective Tim e (A) would result in the failure of any of the conditions set forth in Section 8.1 or Section 8.2 (a “ Company Terminating Breach ” ) an d (B) cannot be cured or w aived by the Outside Date; pro vided , that Su therland sha ll not have the r ight to ter minate this Agreement pursuant to this Section 9.1(c)(i) if a Sutherland Terminating Breach s hall have occurred and be cont inuing at the time Sutherland delivers notice of i ts election to terminate this Agreement pursuant to this Section 9.1(c)(i) ; or

(ii)          prior to obtaining the Compa ny Stockholder Approval, i f Company or the Company Boa rd (A ) shall hav e ef fected an Adverse Recommendation Change ( provided , that Sutherland’s ri ght to terminate this Agre ement pursuant to this Section 9.1(c)(ii)(A) in respect of an Adverse Rec omm endation Change w ill expire thirty (30) days af ter the last date upon which the Company Board makes such Advers e Recommendati on Change), (B) fails to include the Com pany Board Recom mendatio n in the Company Proxy Statement or (C)  approves, adopts, publicly endorses or recommends, or enters into o r a llows Compan y o r any of the Co mpany S ubsidiaries to enter i nto a definitive agre ement for, any Acquisition Proposal ( other tha n an Acceptable Confi dentiality Agre ement); or

(d)           by Company:

(i)           if any of the Su th erla nd Part ies shall have b reached or failed t o perform any of its re presentations, warranties, obligations, covenants or agreements set forth in this Ag reement, which breach or fail ure to pe rform, either i ndi vidually or in the aggregate, if continu ing at the Sutherland Merger Effective Tim e (A) would result in the failure of any of the conditions set forth in Section 8.1 or Section 8.3 (a “ Sutherland Terminating Brea ch ”) and (B) cannot be cured or w aived by the Outside Date; pro vided , that Co mpany shall not have the righ t to ter minate this Agreement pursuant to this Section 9.1(d)(i) if a Company Terminating Breach shal l have occurred and be cont inuing at the time Company delivers notice of its election to terminate this Agreement pursuant to this Section 9.1(d)(i) ; or

(ii)          prior to obtaining the Suthe rl and Stockholder Approval , if Sutherland or the Sutherla nd Bo ard (A) shall have effected an Adverse Recommendation Change ( provided , that Company’s right to terminate th is Agre ement pursuant to this Section 9.1(d)(ii)(A) in respect of an Adve rse Recomm endation Change w ill expire thirty (30) days af ter the last date upon which the Sutherland Board makes such Adv erse Recommendati on Change), (B) fails to include the Sut herland Board Re commenda tion in the Sutherland Proxy Stateme nt or ( C) approves, adopts, publicly endorses or recommends, or enters into o r a llows Suther lan d or any of the Suther land Subsidiar ies to ente r into a definitive agre ement for, any Acquisition Proposal ( other tha n an Acceptable Confi dentiality Agre ement).

Section 9.2            Effect of Termination . In the event of termination of this Agreement as provided in Section 9.1 , written notice thereof shall forthwith be given to the other Parties specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become void and have no effect, without any liability or obligation on the part of the Sutherland Parties or the Company Parties, except that the Confidentiality Agreement and the provisions of Section 7.4 (Public Announcements), this Section 9.2 , Section 9.3 (Fees and Expenses), Section 9.4 (Amendment), and Article 10 (General Provisions) of this Agreement shall survive the termination hereof; provided , that no such termination shall relieve any Party from any liability or damages resulting from any fraud or willful and material breach of any of its covenants, obligations or agreements set forth in this Agreement.

Section 9.3            Fees and Expenses .

(a)          E xcept as otherwise provided i n this Section 9.3 , all Expenses shall be paid by the p arty incu rring such fees or ex penses , whether or not the Mergers ar e consumma ted , provid ed that the Parties will share equally any HSR Act and Form S-4 filing fee s as may be required to consummate the transactions contemplated by this Agreement.

(b)           In the event that:

(i)           (A)         this A greement is terminated by Sut herland pu rsuant to Section 9.1(c)(i) , and after the date hereo f an d prior to the breach or fai lure to perform giving r ise to such right of termination, a bona fide Acquisition Proposal (with, fo r all purposes of thi s Section 9.3(b)(i) , all percentages included in the definition of “Acquisition Proposal” increase d to 50%) has been p ublicly announced, disclosed or otherwise communicated to t he Company Board or any Person sh all have publicly ann ounced an intention (whether or not conditional) to make su ch an Acquisition Proposal or (B) (x ) this Agreement is term inated by Com pany or Su therland pursuant to Section 9.1(b)(iii) , and prior to the Company Stockholders Meeting, an Acquisition Proposal with resp ect to Compa ny has been publicly anno unced, d isclosed or otherwise communicated to C omp any’s stockholders (and no t withd rawn) or any Person shall have publi cly ann ounced an intention (whether or not conditional) to make su ch an Acquisition Proposal and (y) w ithin twelve (12) mon ths after the date of such termination, a transaction in respect of an Acquisition Proposal with resp ect to Company is con summated or Comp any ente rs into a defin itive agree ment in respect of an Acq uisition P roposal with resp ect to Company that i s later consumma ted; or

(ii)          this Agreement is terminate d by Suth erland pur suant to Section 9.1(c)(ii) ;

then, in any such event, Company shall pay to Sutherland the Termination Fee, it being understood that in no event shall Company be required to pay the Termination Fee on more than one occasion. Payment of the Termination Fee shall be made by wire transfer of same day funds to the account or accounts designated by Sutherland (i) prior to or concurrently at the time of consummation of any transaction contemplated by an Acquisition Proposal, in the case of a Termination Fee payable pursuant to Section 9.3(b)(i) , and (ii) as promptly as reasonably practicable after termination (and, in any event, within two (2) Business Days thereof), in the case of the Termination Fee payable pursuant to Section 9.3(b)(ii) . Notwithstanding anything in this Agreement to the contrary (but subject to the proviso to Section 9.2 ), in the event that the Termination Fee becomes payable, then payment to Sutherland of the Termination Fee, together with any amounts due under Section 9.3(d) , shall be the Sutherland Parties’ sole and exclusive remedy as liquidated damages for any and all losses or damages of any nature against the Company Parties, any of the other Company Subsidiaries and each of their respective former, current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and each former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate or assignee of any of the foregoing (collectively, the “ Company Released Parties ”) in respect of this Agreement, any agreement executed in connection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result of the termination of this Agreement, the failure of the Mergers to be consummated or for a breach or failure to perform hereunder (whether intentionally, unintentionally, or otherwise) or otherwise; provided , however , that the foregoing shall not impair the rights of Sutherland, if any, to obtain injunctive relief and/or specific performance pursuant to Section 10.9 prior to any termination of this Agreement. Subject to the proviso to Section 9.2 , upon payment of the Termination Fee, no Company Released Party shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement, except that the obligations under the Confidentiality Agreement and the provisions of Section 7.4 (Public Announcements) and Article 10 (General Provisions) of this Agreement shall survive.

(c)          In the event that :

(i)           (A) this Agreement is terminated by Comp any pursua nt to Section 9.1(d)(i) , and after the date hereof and prior to the breach or fail ure to perform giving ri se to such right of termination, a bona fide Acquisition Proposal (with, for all purposes of this Section 9.3(c)(i) , all percentages included in the definition of “Acquisition Proposal” increased to 50%) has been pu blicly announced, disclosed or otherwise communicated to th e S utherland Board or any Person shall have publicly anno unced a n intention (whether or not conditional) to make suc h a n Acquisition Proposal or (B) (x)  this Agreement is termi nated by Comp any or Sut herland pursuant to Section 9.1(b)(iii) , and prior to the Sutherland Stockholders Meeting , an Acquisition Proposal with respe ct to Suther land has been publicly an nounced, di sclosed or otherwise communicated to Co mpa ny’s stockholders (and not withdr awn) or any Person shall have public ly anno unced a n intention (whether or not conditional) to make suc h a n Acquisition Proposal and (y) wi thin twelve (12) mont hs after the date of such termination, a transaction in respect of an Acquisition Proposal with respe ct to Sutherland is c onsummated or Su therland en ters into a def initive agreem ent in respect of an Acqu isition Pr oposal with respe ct to Sutherland that is later consum mated; or

(ii)          t his Agreement is terminated b y Comp any pursua nt to Section 9.1(d)(ii) ;

then, in any such event , Sutherland shall pay to Company the Termination Fee , it being un ders tood that in no event shall Sutherland be required to pay th e Termination Fee on more than one occasion. Paym ent of the Termination Fee shall be made by wire transfer o f same day funds to the account or accounts designated by Company (i) prior to or concurrently at the time of c ons ummation of any transaction contemplated by an Acquisition Proposal, in the cas e of a Termination Fee payable pursuant to Section 9.3(c)(i) , and (ii)  as promptly as reason ably p racti cable after termination (and, in any event, within two (2)  Business Days thereof), in the c ase of the Termination Fee payable pursuant to Section 9.3(c)(ii) . Notwithstanding anythi ng in t his Agreement to the contrary (but s ubject to the proviso to Section 9.2 ), in the event that the Termination Fee becomes payable, then payment to Company of the Termination Fee , together with a ny amounts due under Section 9.3 (d) , shall be the Company Parties’ sole and exclus ive remedy as l iquidated damages for any and all losses or damages of any nature against th e Sutherland Parties , any of the o ther Sutherland Subsidiaries and each of their respective for mer, current and future directors, officers, employees, agents, general and limited partners, managers, members, stockholders, Affiliates and assignees and eac h former, c urrent or future director, officer, emp loy ee, agent, general or limited partner, manager, mem ber , stockholder, Affiliate or assignee of any of the foregoing (collectively, the “ Sutherland Released Parties ”) in respect of this Agreement, any agreement execute d in conn ection herewith, and the transactions contemplated hereby and thereby, including for any loss or damage suffered as a result o f t he termination of this Agreement , the failure of the Mergers to be consummated or for a breac h or failure to pe rfo rm hereunder (wh ether intentionally , unintent ionally, or otherwise) or otherwise; prov ide d , however , th at the foregoing shall not impair the rights of Company, if any, to obtain injun ctive r elief and/or specific performance pursuant to Section 10.9 prior to any termination of thi s Agreement. Subject to the provi so to Section 9.2 , upon payment of the Termination Fee , no Sutherland Released Party s hall have any further liability or obligation relating to or ari sin g out of this Agreement or the transactions co ntemplated by this Agreement, except that the oblig ations un der the Confidentiality Agreement and th e provisions of Section 7.4 (Public Announcements) and Article 10 (General Provisions) of this Ag r eement shall survive.

(d)          In the event that Company or Sutherland, as the case may be, is obligated to pay the Termination Fee pursuant to Section 9.3(c) , the paying Party shall depo si t into escrow an am ount in cash equal to the Termination Fee with an escrow agent reasonably selected by the other Party, after reasonable consult ation with the paying Party, and pursuant to a writte n esc row agreement (the “ Escrow Agreement ”) reflecting t he terms set for th in this Section 9.3(d) and otherwise reasonably acc ept able to each of the Parties and the escrow agent. The paym ent or deposit into escrow of the T erm ination Fee pursuant to thi s Section 9.3(d) shall be made by the paying Party promptly after receipt of notic e from the other Party that the Escrow Agreement has b een execu ted by the partie s thereto. The Escrow Ag reement shall provide that the Terminat ion Fee in escrow or th e applicable por tion there of shall be released to the receiving Party on an annual basis based upon t he delivery by the receiving Party to the escrow agent of an y one (or a combination) of the follow ing :

(i)           a letter from the receiving Party’s independent certified p ublic accountants indicating the maximum amount that can be paid by the escrow agent to the receiving Party without causing the recei ving P arty to fail to meet the requi rement s of Sections 856(c)(2) and (3) of the Code for the applicable taxable year of the receiving Party determined as if the paym ent of such amount did not constitute income described in Sections 856(c)(2)(A)-(H) or 856(c)(3)(A)-(I) of the Code (s uch income, “ Qualifying REIT Income ”), in wh ich case the escrow ag ent shall release to the receiving Party such maximum amount state d in t he accountant’s letter;

(ii)          a letter from the receiving Party’s counsel indicating that the receiving Party received a private letter rulin g from the IRS holding that the receipt by the receiving Party of the Termination Fee wo uld ei ther co nstitute Qualify ing REIT Income or would be excluded from gross in come within the meaning of Sections 856(c)(2) and (3) of the Code, in which case the escrow agen t shall release to the receiving Party the remainder of the Term inatio n Fee; or

(iii)         a letter fr om the receivin g Pa rty’s counsel indicating that the receiving Party has received a tax opinio n from receiving Part y’s outside counsel or acco untan t, respectively, to th e effect that the receipt by the receiving Party of the Termination Fee wo uld ei ther co nstitute Qualify ing REIT Income or would be excluded from gross in come within the meaning of Section 856(c)(2) and (3) of the Code, in which case the escrow agen t shall release to the receiving Party the remainder of the Term inatio n Fee.

The Parties ag ree to cooperat e i n good faith to amend this Section 9.3(d) at the reasonable request of the other Party in order to (A) maximize t he por tio n of t he Termination Fee that may be dist ributed to the r eceiving Party hereunder without causing the receiving Pa rty to fail to meet the requir ements of Sections 856(c)(2) and (3) of the Code, (B) improve the receiving Part y’s chances of securing the favo rable private letter ruling from the IRS described in this Section 9.3(d) or (C) assist the receiving Party i n obtaining the favorable tax o pinion from its outside cou nsel or accountant described in this Section 9.3 (d) . The Escrow Agreement shall pr ovide t hat the receiving Party shall bear all costs and e xpense s under the Escrow Agreem ent and t hat any po rtion of the Term ination Fee held in escrow f or ten (10) year s shall be released by the escrow agent to the paying Party. The paying Party shall n ot be a party to th e Escr ow Agreement an d shal l not b ear any liability , cost or expense resulting directly or in directly from the Escrow Ag ree ment (other than any Taxes of the pay ing Party associ ated w ith the releas e of t he funds to the paying Party from the escrow). The rec eiving Party shall fully indemnify the paying Party and hold the paying Party harmle ss from and against any su ch liability, cost or expense.