(vi) a fully
executed Side Letter and the Servicing Agreement.
(C)
EACH CONFIRMATION SHALL BE EXECUTED BY SELLER AND BUYER AND,
TOGETHER WITH THIS AGREEMENT, SHALL BE CONCLUSIVE EVIDENCE OF THE TERMS OF THE
TRANSACTION(S) COVERED THEREBY.
(D)
SELLER MAY, AT ITS OPTION SO LONG AS AN EVENT OF DEFAULT SHALL NOT
HAVE OCCURRED AND BE CONTINUING, INCREASE OR DECREASE THE OUTSTANDING PURCHASE
PRICE WITH RESPECT TO ANY TRANSACTION SUBSEQUENT TO THE PURCHASE DATE; PROVIDED,
HOWEVER, THAT SUCH ACTION ON THE PART OF SELLER SHALL NOT BE PERMITTED IF IT
WOULD CREATE A MARGIN DEFICIT.
(E)
SELLER SHALL PAY BUYER ON OR PRIOR TO THE INITIAL PURCHASE DATE A
ONE-TIME, UP FRONT AMOUNT (THE "PURCHASE FEE") AS SET FORTH IN THE 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 FEBRUARY 15, 2008.
(G)
SELLER SHALL BE ENTITLED TO TERMINATE A TRANSACTION AND REPURCHASE
ANY OR ALL OF THE PURCHASED LOANS FROM BUYER ON TWO (2) BUSINESS DAYS' NOTICE ON
ANY BUSINESS DAY PRIOR TO THE REPURCHASE DATE (AN "EARLY REPURCHASE DATE").
16
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 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 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