it has become so entitled. In the event that Seller
elects to terminate a Transaction in response to a demand by Buyer pursuant to
this Section 2(i), no Exit Fee with respect to such termination shall be due by
Seller and the Purchase Fee relating to that Transaction shall be refunded on a
pro rata basis. A certificate as to the calculation of any additional amounts
payable pursuant to this subsection shall be submitted by Buyer to Seller and
shall be conclusive and binding upon Seller in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the repurchase
by Seller of any or all of the Purchased Loans.
(J)
IF BUYER SHALL HAVE DETERMINED THAT THE ADOPTION OF OR ANY CHANGE
IN ANY REQUIREMENT OF LAW REGARDING CAPITAL ADEQUACY OR IN THE INTERPRETATION OR
APPLICATION THEREOF OR COMPLIANCE BY BUYER OR ANY CORPORATION CONTROLLING BUYER
WITH ANY REQUEST OR DIRECTIVE REGARDING CAPITAL ADEQUACY (WHETHER OR NOT HAVING
THE FORCE OF LAW) FROM ANY GOVERNMENTAL AUTHORITY MADE SUBSEQUENT TO THE DATE
HEREOF DOES OR SHALL HAVE THE EFFECT OF REDUCING THE RATE OF RETURN ON BUYER'S
OR SUCH CORPORATION'S CAPITAL AS A CONSEQUENCE OF ITS OBLIGATIONS HEREUNDER TO A
LEVEL BELOW THAT WHICH BUYER OR SUCH CORPORATION COULD HAVE ACHIEVED BUT FOR
SUCH ADOPTION, CHANGE OR COMPLIANCE (TAKING INTO CONSIDERATION BUYER'S OR SUCH
CORPORATION'S POLICIES WITH RESPECT TO CAPITAL ADEQUACY) BY AN AMOUNT DEEMED BY
BUYER TO BE MATERIAL, THEN FROM TIME TO TIME, AFTER SUBMISSION BY BUYER TO
SELLER OF A WRITTEN REQUEST THEREFOR, SELLER SHALL PAY TO BUYER SUCH ADDITIONAL
AMOUNT OR AMOUNTS AS WILL COMPENSATE BUYER FOR SUCH REDUCTION WHICH IS ACTUALLY
INCURRED BY BUYER. A CERTIFICATE AS TO THE CALCULATION OF ANY ADDITIONAL AMOUNTS
PAYABLE PURSUANT TO THIS SUBSECTION SHALL BE SUBMITTED BY BUYER TO SELLER AND
SHALL BE CONCLUSIVE AND
18
BINDING UPON SELLER IN THE ABSENCE OF MANIFEST ERROR. THIS COVENANT SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE REPURCHASE BY SELLER OF ANY OR
ALL OF THE PURCHASED LOANS.
(K)
ANY PROVISION HEREOF TO THE CONTRARY NOTWITHSTANDING, SELLER SHALL
PAY ALL REASONABLE FEES AND EXPENSES OF BUYER (INCLUDING ALL REASONABLE LEGAL
FEES) ASSOCIATED WITH THE PURCHASE OF ANY ELIGIBLE LOAN UNDER THIS AGREEMENT AND
SHALL PAY THE FEES AND EXPENSES OF COUNSEL TO BUYER IN CONNECTION WITH THE
PREPARATION AND EXECUTION OF THIS AGREEMENT AND ALL OTHER TRANSACTION DOCUMENTS.
(L)
ANY PROVISION HEREOF TO THE CONTRARY NOTWITHSTANDING,
TRANSACTIONS ENTERED INTO HEREUNDER SHALL BE AT THE SOLE DISCRETION OF BUYER.
BUYER IS NOT REQUIRED TO ENTER INTO ANY TRANSACTION AND BUYER MAY, IN ITS SOLE
DISCRETION, REJECT FOR INCLUSION IN ANY TRANSACTION ANY ELIGIBLE LOANS OFFERED
FOR SALE HEREUNDER BY SELLER.
(M)
IN THE EVENT THAT THE REPURCHASE DATE IN RESPECT OF THE CDO ASSETS
OCCURS MORE THAN SIX (6) MONTHS AFTER THE RELATED PURCHASE DATE, THE PRICING
TERMS SET FORTH IN THE SIDE LETTER RELATING TO THE CDO ASSETS SHALL NO LONGER BE
APPLICABLE AND THE