election under Section 3(c).
SECTION 3.
EXHIBITS. EXHIBIT V OF THE EXISTING REPURCHASE AGREEMENT IS
HEREBY AMENDED BY DELETING IT IN ITS ENTIRETY AND REPLACING IT WITH EXHIBIT A
ATTACHED HERETO.
SECTION 4.
CONDITIONS PRECEDENT. THIS AMENDMENT SHALL BECOME EFFECTIVE
ON APRIL 24, 2006 (THE "AMENDMENT EFFECTIVE DATE") SUBJECT TO THE SATISFACTION
OF THE FOLLOWING CONDITIONS PRECEDENT:
4.1
DELIVERED DOCUMENTS. ON THE AMENDMENT EFFECTIVE DATE, THE BUYER
SHALL HAVE RECEIVED THE FOLLOWING DOCUMENTS, EACH OF WHICH SHALL BE SATISFACTORY
TO THE BUYER IN FORM AND SUBSTANCE:
(A)
THIS AMENDMENT, EXECUTED AND DELIVERED AND DULY AUTHORIZED
OFFICERS OF THE BUYER AND THE SELLERS; AND
(B)
SUCH OTHER DOCUMENTS AS THE BUYER OR COUNSEL TO THE BUYER MAY
REASONABLY REQUEST.
6
4.2
COMMITMENT FEE. PAYMENT OF COMMITMENT FEE.
SECTION 5.
LIMITED EFFECT. EXCEPT AS EXPRESSLY AMENDED AND MODIFIED BY
THIS AMENDMENT, THE EXISTING REPURCHASE AGREEMENT SHALL CONTINUE TO BE, AND
SHALL REMAIN, IN FULL FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS.
SECTION 6.
FEES. THE SELLERS AGREE TO PAY AS AND WHEN BILLED BY THE
BUYER ALL OF THE REASONABLE FEES, DISBURSEMENTS AND EXPENSES OF COUNSEL TO THE
BUYER IN CONNECTION WITH THE DEVELOPMENT, PREPARATION AND EXECUTION OF, THIS
AMENDMENT OR ANY OTHER DOCUMENTS PREPARED IN CONNECTION HEREWITH AND RECEIPT OF
PAYMENT THEREOF SHALL BE A CONDITION PRECEDENT TO THE BUYER ENTERING INTO ANY
TRANSACTION PURSUANT HERETO.
SECTION 7.
CONFIDENTIALITY. THE PARTIES HERETO ACKNOWLEDGE THAT THIS
AMENDMENT, THE EXISTING REPURCHASE AGREEMENT, AND ALL DRAFTS THEREOF, DOCUMENTS
RELATING THERETO AND TRANSACTIONS CONTEMPLATED THEREBY ARE CONFIDENTIAL IN
NATURE AND THE SELLER AGREE THAT, UNLESS OTHERWISE DIRECTED BY A COURT OF
COMPETENT JURISDICTION OR AS IS NECESSARY TO DO SO IN WORKING WITH GOVERNMENTAL
AGENCIES OR REGULATORY BODIES IN ORDER TO COMPLY WITH ANY APPLICABLE FEDERAL OR
STATE LAWS, THEY SHALL LIMIT THE DISTRIBUTION OF SUCH DOCUMENTS AND THE
DISCUSSION OF SUCH TRANSACTIONS TO SUCH OF ITS OFFICERS, EMPLOYEES, ATTORNEYS,
ACCOUNTANTS AND AGENTS AS IS REQUIRED IN ORDER TO FULFILL ITS OBLIGATIONS UNDER
SUCH DOCUMENTS AND WITH RESPECT TO SUCH TRANSACTIONS.
SECTION 8.
GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION 9.
COUNTERPARTS. THIS AMENDMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS AND BY DIFFERENT PARTIES HERETO ON SEPARATE COUNTERPARTS, EACH OF
WHICH, WHEN SO EXECUTED, SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
SECTION 10.
CONFLICTS. THE PARTIES HERETO AGREE THAT IN THE EVENT THERE
IS ANY CONFLICT BETWEEN THE TERMS OF THIS AMENDMENT, AND THE TERMS OF THE
EXISTING REPURCHASE AGREEMENT, THE PROVISIONS OF THIS AMENDMENT SHALL CONTROL.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year first
above written.
Buyer:
MERRILL LYNCH BANK USA,
as Buyer
By:
/s/ James B. Cason
Name: James B. Cason
Title: Vice President
Seller: