THE
EXECUTION, DELIVERY AND PERFORMANCE OF THE TRANSACTION DOCUMENTS AND EACH OTHER
DOCUMENT TO BE DELIVERED BY SELLER AND GUARANTORS FROM TIME TO TIME IN
CONNECTION HEREWITH (AND BUYER MAY CONCLUSIVELY RELY ON SUCH CERTIFICATE UNTIL
IT RECEIVES NOTICE IN WRITING FROM SELLER OR GUARANTORS TO THE CONTRARY);
(X)
BUYER SHALL HAVE RECEIVED PAYMENT FROM SELLER OF AN AMOUNT EQUAL
TO THE AMOUNT OF ACTUAL COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, THE
REASONABLE FEES AND EXPENSES OF COUNSEL TO BUYER, INCURRED BY BUYER IN
CONNECTION WITH THE DEVELOPMENT, PREPARATION AND EXECUTION OF THIS AGREEMENT,
THE OTHER TRANSACTION DOCUMENTS AND ANY OTHER DOCUMENTS PREPARED IN CONNECTION
HEREWITH OR THEREWITH;
(XI)
BUYER SHALL HAVE RECEIVED PAYMENT FROM SELLER, AS CONSIDERATION
FOR BUYER'S AGREEMENT TO ENTER INTO THIS AGREEMENT, AN UP-FRONT STRUCTURING FEE
IN AN AMOUNT EQUAL TO $200,000 (CALCULATED AS TEN (10) BASIS POINTS (0.10%)
MULTIPLIED BY THE FACILITY AMOUNT), SUCH AMOUNT TO BE PAID TO BUYER IN U.S.
DOLLARS, IN IMMEDIATELY AVAILABLE FUNDS, WITHOUT DEDUCTION, SET-OFF OR
COUNTERCLAIM (THE "STRUCTURING FEE");
(XII)
THE ACCOMMODATION LOAN SERVICING AGREEMENT, DULY COMPLETED AND
EXECUTED BY EACH OF THE PARTIES THERETO; AND
24
(XIII)
ALL SUCH OTHER AND FURTHER DOCUMENTS, DOCUMENTATION AND LEGAL
OPINIONS AS BUYER IN ITS SOLE DISCRETION SHALL REASONABLY REQUIRE.
(B)
BUYER'S AGREEMENT TO ENTER INTO EACH TRANSACTION (INCLUDING THE
INITIAL TRANSACTION AND EACH SPECIAL PURPOSE TRANSACTION) IS SUBJECT TO THE
SATISFACTION OF THE FOLLOWING FURTHER CONDITIONS PRECEDENT, BOTH IMMEDIATELY
PRIOR TO ENTERING INTO SUCH TRANSACTION AND ALSO AFTER GIVING EFFECT TO THE
CONSUMMATION THEREOF AND THE INTENDED USE OF THE PROCEEDS OF THE SALE:
(I)
SELLER SHALL GIVE BUYER WRITTEN NOTICE OF EACH TRANSACTION
(INCLUDING THE INITIAL TRANSACTION AND EACH SPECIAL PURPOSE TRANSACTION) AND
BUYER SHALL INFORM SELLER OF ITS DETERMINATION WITH RESPECT TO ANY SUCH PROPOSED
TRANSACTION SOLELY IN ACCORDANCE WITH EXHIBIT VIII ATTACHED HERETO.
BUYER SHALL
HAVE THE RIGHT TO REVIEW THE ELIGIBLE ASSETS SELLER PROPOSES TO SELL TO BUYER IN
ANY TRANSACTION AND TO CONDUCT ITS OWN DUE DILIGENCE INVESTIGATION OF SUCH
ELIGIBLE ASSETS AS BUYER DETERMINES ("PRE-PURCHASE DUE DILIGENCE").
BUYER SHALL
BE ENTITLED TO MAKE A DETERMINATION, IN THE EXERCISE OF ITS SOLE DISCRETION,
THAT, IN THE CASE OF A TRANSACTION OTHER THAN A SPECIAL PURPOSE TRANSACTION, IT
SHALL OR SHALL NOT PURCHASE ANY OR ALL OF THE ASSETS PROPOSED TO BE SOLD TO
BUYER BY SELLER OR, IN THE CASE OF A SPECIAL PURPOSE TRANSACTION, SHALL OR SHALL
NOT PROVIDE ADDITIONAL FUNDS TO THE SELLER.
ON THE PURCHASE DATE FOR THE
TRANSACTION THAT SHALL BE NOT LESS THAN ONE (1) BUSINESS DAY FOLLOWING THE FINAL
APPROVAL OF AN ELIGIBLE ASSET BY BUYER IN ACCORDANCE WITH EXHIBIT VIII HERETO,
THE PURCHASED ASSETS SHALL BE TRANSFERRED TO BUYER OR ITS AGENT AGAINST THE
TRANSFER OF THE PURCHASE PRICE TO AN ACCOUNT OF SELLER.
(II)
BUYER SHALL HAVE DELIVERED TO SELLER (WITH A COPY TO CUSTODIAN) A
WRITTEN CONFIRMATION IN THE FORM OF EXHIBIT I ATTACHED HERETO AT LEAST TEN (10)
DAYS PRIOR TO EACH TRANSACTION (A "CONFIRMATION").