BE PAID TO BUYER IN U.S. DOLLARS, IN
IMMEDIATELY AVAILABLE FUNDS, WITHOUT DEDUCTION, SET-OFF OR COUNTERCLAIM (THE
"STRUCTURING FEE"); AND
(XII)
ALL SUCH OTHER AND FURTHER DOCUMENTS, DOCUMENTATION AND LEGAL
OPINIONS AS BUYER IN ITS DISCRETION SHALL REASONABLY REQUIRE.
(B)
BUYER'S AGREEMENT TO ENTER INTO EACH TRANSACTION (INCLUDING THE
INITIAL 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:
**** Material omitted pursuant to a request for confidential treatment under
Rule 24b-2 of the Exchange Act of 1934.
Material filed separately with the
Securities and Exchange Commission.
22
(I)
THE SUM OF (A) THE UNPAID REPURCHASE PRICE FOR ALL PRIOR
OUTSTANDING TRANSACTIONS, (B) THE REQUESTED PURCHASE PRICE FOR THE PENDING
TRANSACTION AND (C) ALL AVAILABLE AND UNFUNDED ADVANCES UNDER ALL PRIOR
OUTSTANDING TRANSACTIONS SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FACILITY
AMOUNT.
(II)
SELLER SHALL GIVE BUYER WRITTEN NOTICE OF EACH TRANSACTION
(INCLUDING THE INITIAL TRANSACTION), TOGETHER WITH A SIGNED, WRITTEN
CONFIRMATION IN THE FORM OF EXHIBIT I ATTACHED HERETO PRIOR TO EACH TRANSACTION
(A "CONFIRMATION").
EACH CONFIRMATION SHALL DESCRIBE THE PURCHASED ASSETS,
SHALL IDENTIFY BUYER AND SELLER, SHALL BE EXECUTED BY BOTH BUYER AND SELLER
(PROVIDED THAT, IN INSTANCES WHERE FUNDS ARE BEING WIRED TO AN ACCOUNT OTHER
THAN 230-254-632 AT JPMORGAN CHASE BANK, N.A., THE CONFIRMATION SHALL BE SIGNED
BY TWO (2) AUTHORIZED SIGNATORIES OF SELLER); PROVIDED, HOWEVER, THAT BUYER
SHALL NOT BE LIABLE TO SELLER IF IT INADVERTENTLY ACTS ON A CONFIRMATION THAT
HAS NOT BEEN SIGNED BY TWO (2) SUCH AUTHORIZED SIGNATORIES, AND SHALL SET FORTH:
(A)
THE PURCHASE DATE;
(B)
THE PURCHASE PRICE FOR THE PURCHASED ASSET INCLUDED IN THE
TRANSACTION;
(C)
THE REPURCHASE DATE;
(D)
ANY ADDITIONAL TERMS OR CONDITIONS NOT INCONSISTENT WITH THIS
AGREEMENT; AND
(E)
THE REQUESTED ADVANCE RATE AND THE RELATED MAXIMUM ADVANCE RATE.
(III)
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, IT SHALL OR SHALL NOT PURCHASE ANY OR ALL OF THE ASSETS PROPOSED TO
BE SOLD TO BUYER BY 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 THE CUSTODIAN AGAINST THE TRANSFER OF
THE PURCHASE PRICE TO AN ACCOUNT OF SELLER.
BUYER SHALL INFORM SELLER OF ITS
DETERMINATION WITH RESPECT TO ANY SUCH PROPOSED TRANSACTION SOLELY IN ACCORDANCE
WITH EXHIBIT VIII ATTACHED HERETO.
UPON THE APPROVAL BY BUYER OF A PARTICULAR
PROPOSED TRANSACTION, BUYER SHALL DELIVER TO SELLER A