DESIGNATED BY SELLER. TO THE EXTENT
BUYER ENTERS INTO A TRANSACTION WITH SELLER WITH RESPECT TO A PURCHASED ASSET
WHICH IS AN ELIGIBLE ASSET OF THE TYPE DESCRIBED IN CLAUSE (II) OF THE
DEFINITION THEREOF (I.E., SUCH ELIGIBLE ASSET DOES NOT SATISFY THE
CHARACTERISTICS DESCRIBED IN CLAUSE (I) OF THE DEFINITION THEREOF), THEN SUCH
ASSET SHALL BE DEEMED TO BE AN ELIGIBLE ASSET FOR ALL PURPOSES OF THIS
AGREEMENT.
(B)
UPON AGREEING TO ENTER INTO A TRANSACTION HEREUNDER, PROVIDED EACH
OF THE TRANSACTION CONDITIONS PRECEDENT (AS HEREINAFTER DEFINED) SHALL HAVE BEEN
SATISFIED (OR WAIVED BY BUYER), BUYER SHALL PROMPTLY DELIVER TO SELLER A WRITTEN
CONFIRMATION SUBSTANTIALLY IN THE FORM OF EXHIBIT I ATTACHED HERETO OF EACH
TRANSACTION (A "CONFIRMATION"). IN THE ABSENCE OF EXECUTION AND DELIVERY BY
BUYER OF A CONFIRMATION FOR A PROPOSED TRANSACTION, BUYER SHALL UNDER NO
CIRCUMSTANCE BE DEEMED TO HAVE AGREED TO ENTER INTO SUCH TRANSACTION. SUCH
CONFIRMATION SHALL DESCRIBE THE PURCHASED ASSET(S) (AND, IN THIS CONNECTION,
SHALL SET FORTH (A) THE NAME OF THE COUNTERPARTY WITH RESPECT TO THE PURCHASED
ASSET, (B) A DESCRIPTION (INCLUDING THE DATE) OF THE
14
LOAN AGREEMENT OR OTHER DOCUMENT, AGREEMENT OR INSTRUMENT PURSUANT TO WHICH THE
RELATED PURCHASED ASSET IS MADE OR GOVERNED, AND (C) THE INITIAL OR THEN
OUTSTANDING PRINCIPAL AMOUNT OF THE RELATED PURCHASED ASSET) WHICH SHALL BE THE
SUBJECT OF THE PROPOSED TRANSACTION, SHALL IDENTIFY BUYER AND SELLER, AND SHALL
SET FORTH (I) THE PURCHASE DATE, (II) THE PURCHASE PRICE FOR SUCH PURCHASED
ASSET(S), (III) THE REPURCHASE DATE, (IV) THE PRICING RATE APPLICABLE TO THE
TRANSACTION AND (V) ANY ADDITIONAL TERMS OR CONDITIONS NOT INCONSISTENT WITH
THIS AGREEMENT. EACH CONFIRMATION SHALL BE DEEMED INCORPORATED HEREIN BY
REFERENCE WITH THE SAME EFFECT AS IF SET FORTH HEREIN AT LENGTH. WITH RESPECT TO
ANY TRANSACTION, THE PRICING RATE SHALL BE DETERMINED INITIALLY ON THE PRICING
RATE DETERMINATION DATE APPLICABLE TO THE FIRST PRICING RATE PERIOD FOR SUCH
TRANSACTION, AND SHALL BE RESET ON EACH RESET DATE FOR THE NEXT SUCCEEDING
PRICING RATE PERIOD FOR SUCH TRANSACTION. BUYER OR ITS AGENT SHALL DETERMINE, IN
ACCORDANCE WITH THE TERMS OF THE SIDE LETTER, THE PRICING RATE ON EACH PRICING
RATE DETERMINATION DATE FOR THE RELATED PRICING RATE PERIOD AND NOTIFY SELLER OF
SUCH RATE FOR SUCH PERIOD ON THE RESET DATE. FOR PURPOSES OF THIS SECTION 2(B),
THE "TRANSACTION CONDITIONS PRECEDENT" SHALL BE DEEMED TO HAVE BEEN SATISFIED
WITH RESPECT TO ANY PROPOSED TRANSACTION IF:
(1)
NO DEFAULT OR EVENT OF DEFAULT UNDER THIS AGREEMENT SHALL HAVE
OCCURRED AND BE CONTINUING AS OF THE PURCHASE DATE FOR SUCH PROPOSED
TRANSACTION;
(2)
SELLER SHALL HAVE CERTIFIED TO BUYER IN WRITING THE ACQUISITION
COST OF SUCH PURCHASED ASSETS (INCLUDING THEREIN REASONABLE SUPPORTING
DOCUMENTATION REQUIRED BY BUYER, IF ANY);
(3)
THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN ANY OF THE
TRANSACTION DOCUMENTS SHALL BE TRUE AND CORRECT IN RESPECT OF THE ELIGIBLE ASSET
IN QUESTION IN ALL MATERIAL RESPECTS AS OF THE PURCHASE DATE FOR SUCH
TRANSACTION;
(4)
BUYER SHALL HAVE