CONCLUSIVE AND
BINDING UPON SELLER) THAT, BY REASON OF CIRCUMSTANCES AFFECTING THE RELEVANT
MARKET, ADEQUATE AND REASONABLE MEANS DO NOT EXIST FOR ASCERTAINING THE LIBO
RATE FOR SUCH PRICING RATE PERIOD, OR (II) THE LIBO RATE DETERMINED OR TO BE
DETERMINED FOR SUCH PRICING RATE PERIOD WILL NOT ADEQUATELY AND FAIRLY REFLECT
THE COST TO THE APPLICABLE BUYER (AS DETERMINED AND CERTIFIED BY SUCH BUYER) OF
MAKING OR MAINTAINING TRANSACTIONS DURING SUCH PRICING RATE PERIOD, THE
APPLICABLE BUYER SHALL GIVE TELECOPY OR TELEPHONIC NOTICE THEREOF TO SELLER AS
SOON AS PRACTICABLE THEREAFTER.
IF SUCH NOTICE IS GIVEN, THE PRICING RATE WITH
RESPECT TO SUCH TRANSACTION FOR SUCH PRICING RATE PERIOD, AND FOR ANY SUBSEQUENT
PRICING RATE PERIODS UNTIL SUCH NOTICE HAS BEEN WITHDRAWN BY THE APPLICABLE
BUYER, SHALL BE A PER ANNUM RATE EQUAL TO THE PRIME RATE (THE "ALTERNATIVE
RATE").
(H)
NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IF THE ADOPTION OF OR
ANY CHANGE IN ANY REQUIREMENT OF LAW OR IN THE INTERPRETATION OR APPLICATION
THEREOF SHALL MAKE IT UNLAWFUL FOR A BUYER TO EFFECT TRANSACTIONS AS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS, (A) THE COMMITMENT OF SUCH BUYER
HEREUNDER TO ENTER INTO NEW TRANSACTIONS AND TO CONTINUE TRANSACTIONS AS SUCH
SHALL FORTHWITH BE CANCELED, AND (B) THE TRANSACTIONS THEN OUTSTANDING SHALL BE
CONVERTED AUTOMATICALLY TO ALTERNATIVE RATE TRANSACTIONS ON THE LAST DAY OF THE
THEN CURRENT PRICING RATE PERIOD OR WITHIN SUCH EARLIER PERIOD AS MAY BE
REQUIRED BY LAW.
IF ANY SUCH CONVERSION OF A TRANSACTION OCCURS ON A DAY WHICH
IS NOT THE LAST DAY OF THE THEN CURRENT PRICING RATE PERIOD WITH RESPECT TO SUCH
TRANSACTION, SELLER SHALL PAY TO THE APPLICABLE BUYER SUCH AMOUNTS, IF ANY, AS
MAY BE REQUIRED PURSUANT TO SECTION 3(I) OF THIS AGREEMENT.
(I)
UPON DEMAND BY A BUYER, SELLER SHALL INDEMNIFY SUCH BUYER AND
HOLD SUCH BUYER HARMLESS FROM ANY NET ACTUAL, OUT-OF-POCKET LOSS OR EXPENSE (NOT
TO INCLUDE ANY LOST PROFIT OR OPPORTUNITY) (INCLUDING, WITHOUT LIMITATION,
ACTUAL REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) WHICH SUCH BUYER MAY
SUSTAIN OR INCUR AS A CONSEQUENCE OF (I) DEFAULT BY THE SELLER IN TERMINATING
ANY TRANSACTION AFTER THE SELLER HAS GIVEN A NOTICE IN ACCORDANCE WITH SECTION
3(D) OF A TERMINATION OF A TRANSACTION, (II) ANY PAYMENT OF THE REPURCHASE PRICE
ON ANY DAY OTHER THAN A REMITTANCE DATE OR THE REPURCHASE DATE (INCLUDING,
WITHOUT LIMITATION, ANY SUCH ACTUAL,
22
OUT-OF-POCKET LOSS OR EXPENSE ARISING FROM THE REEMPLOYMENT OF FUNDS OBTAINED BY
SUCH BUYER TO MAINTAIN TRANSACTIONS HEREUNDER OR FROM CUSTOMARY AND REASONABLE
FEES PAYABLE TO TERMINATE THE DEPOSITS FROM WHICH SUCH FUNDS WERE OBTAINED) OR
(III) A DEFAULT BY SELLER IN SELLING ELIGIBLE LOANS OR ELIGIBLE SECURITIES AFTER
SELLER HAS NOTIFIED SUCH BUYER OF A PROPOSED TRANSACTION AND SUCH BUYER HAS
AGREED TO PURCHASE SUCH ELIGIBLE LOANS OR ELIGIBLE SECURITIES IN ACCORDANCE WITH
THE PROVISIONS OF THIS AGREEMENT.
A CERTIFICATE AS TO SUCH ACTUAL COSTS,
LOSSES, DAMAGES AND EXPENSES, SETTING FORTH THE CALCULATIONS THEREFOR SHALL BE
SUBMITTED PROMPTLY BY THE APPLICABLE BUYER