SIDE LETTER;
PROVIDED, HOWEVER, THAT SOLELY FOR PURPOSES OF CALCULATING THE PURCHASE FEE
HEREUNDER, THE MAXIMUM COMMITTED AGGREGATE PURCHASE PRICE SHALL BE DEEMED TO BE
$75,000,000.
(F)
EACH TRANSACTION ENTERED INTO BETWEEN BUYER AND SELLER SHALL
REMAIN OUTSTANDING FROM THE INITIAL PURCHASE DATE UNTIL THE EARLIER OF THE
REPURCHASE DATE OR THE COMMITMENT EXPIRATION DATE. THE SPREAD OVER LIBOR STATED
IN THE RELATED CONFIRMATION FOR EACH TRANSACTION WILL NOT CHANGE FOR SUCH
TRANSACTION UNTIL AUGUST 15, 2008.
(G)
SELLER SHALL BE ENTITLED TO TERMINATE A TRANSACTION AND REPURCHASE
ANY OR ALL OF THE PURCHASED ASSETS FROM BUYER ON TWO (2) BUSINESS DAYS' NOTICE
ON ANY BUSINESS DAY PRIOR TO THE REPURCHASE DATE (AN "EARLY REPURCHASE DATE").
If Seller terminates any Transaction pursuant to the preceding sentence, then,
except as provided below, Seller shall pay to Buyer a termination fee (the "Exit
Fee") on the Early Repurchase Date. The Exit Fee shall be calculated as the
product of (i) the Outstanding Purchase Price and (ii) the following amount:
(A) if the Early Repurchase Date is less than one
16
year from the Repurchase Date, no Exit Fee will be payable, (B) if the Early
Repurchase Date is at least one year but less than two years from the Repurchase
Date, [****], and (C) if the Early Repurchase Date is at least two years from
the Repurchase Date, [****]. Additionally:
(I)
NO EXIT FEE WILL BE PAYABLE FOR THE EARLY REPURCHASE OF PURCHASED
ASSETS RESULTING FROM (A) THE SALE OF THE UNDERLYING ASSETS TO BUYER, OR ANY OF
ITS AFFILIATES, (B) THE SALE OF THE UNDERLYING ASSETS TO BUYER, OR ANY OF ITS
AFFILIATES, UNDER A AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT, (C) THE
SALE OF THE UNDERLYING ASSETS TO A SECURITIZATION VEHICLE FOR WHICH BUYER, OR
ANY OF ITS AFFILIATES, ARE ACTING IN A LEAD OR CO-LEAD MANAGER OR CO-MANAGER
ROLE, (D) MATURITY OF THE UNDERLYING LOAN, (E) CONTRACTUAL DEFAULTS BY EITHER
PARTY TO THE UNDERLYING LOAN DOCUMENTS AND AGREEMENTS, (F) ANY PAYDOWNS,
PREPAYMENTS OR DEFAULTS ON THE PURCHASED ASSETS, (G) ANY ROLL OF A PURCHASED
ASSET INTO A NEW TRANSACTION, (H) PAY-OFFS RESULTING FROM A MARGIN CALL OR
MARKET VALUE CALCULATION DISPUTE BETWEEN SELLER AND BUYER INCLUDING, WITHOUT
LIMITATION, FOR A MARGIN CALL IN ACCORDANCE WITH SECTION 13(IX) HEREOF,
(I) SELLER'S TERMINATION OF A TRANSACTION IN RESPONSE TO A DEMAND BY BUYER
PURSUANT TO SECTION 2(I) HEREOF OR (J) IN THE EVENT ADDITIONAL COSTS ARE IMPOSED
BY BUYER PURSUANT TO SECTION 2(J) HEREOF AND SELLER ELECTS TO TERMINATE A
TRANSACTION OR TRANSACTIONS AS A RESULT THEREOF.
(II)
ADDITIONAL PURCHASED ASSETS ACCEPTABLE TO BUYER MAY BE
SUBSTITUTED AND NO EXIT FEE WILL BE PAYABLE IN CONNECTION WITH SUCH
SUBSTITUTIONS. NO OTHER SUBSTITUTIONS WILL BE EXEMPT FROM PAYMENT OF THE EXIT
FEE.
(III)
NO EXIT FEE WILL BE PAYABLE FOR THE EARLY REPURCHASE OF ANY
PURCHASED ASSET WHICH IS A CDO I ASSET OR A CDO II ASSET.
Such notice shall set forth the Early Repurchase Date and shall identify with