OR DEEMED TO
HAVE BEEN MADE OR REPEATED (OTHER THAN THE REPRESENTATIONS AND WARRANTIES OF
SELLER SET FORTH IN ARTICLE 10(B)(X), (OTHER THAN ARTICLE 10(B)(X)(D)), ARTICLE
10(B)(XXI) OR ARTICLE 10(B)(XXII) OF THIS AGREEMENT, AND (B) ANY MATERIAL BREACH
SHALL HAVE OCCURRED WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN ARTICLE 10(B)(X)(D), WHICH SHALL NOT BE CONSIDERED AN EVENT OF DEFAULT IF
INCORRECT OR UNTRUE IN ANY MATERIAL RESPECT, PROVIDED SELLER TERMINATES THE
RELATED TRANSACTION, AS APPLICABLE, AND REPURCHASES THE RELATED PURCHASED ASSETS
ON AN EARLY REPURCHASE DATE NO LATER THAN THREE (3) BUSINESS DAYS AFTER
RECEIVING NOTICE OF SUCH INCORRECT OR UNTRUE REPRESENTATION; UNLESS SELLER SHALL
HAVE MADE ANY SUCH REPRESENTATION WITH KNOWLEDGE THAT IT WAS MATERIALLY
INCORRECT OR UNTRUE AT THE TIME MADE;
(XVI)
A FINAL NON-APPEALABLE JUDGMENT BY ANY COMPETENT COURT IN THE
UNITED STATES OF AMERICA FOR THE PAYMENT OF MONEY IN AN AMOUNT GREATER THAN
$5,000,000 SHALL
58
HAVE BEEN RENDERED AGAINST SELLER, AND REMAINED UNDISCHARGED OR UNPAID FOR A
PERIOD OF SIXTY (60) DAYS, DURING WHICH PERIOD EXECUTION OF SUCH JUDGMENT IS NOT
EFFECTIVELY STAYED BY BONDING OVER OR OTHER MEANS ACCEPTABLE TO BUYER; AND
(XVII)
IF SELLER SHALL BREACH OR FAIL TO PERFORM ANY OF THE TERMS,
COVENANTS, OBLIGATIONS OR CONDITIONS OF THIS AGREEMENT, OTHER THAN AS
SPECIFICALLY OTHERWISE REFERRED TO IN THIS DEFINITION OF "EVENT OF DEFAULT", AND
SUCH BREACH OR FAILURE TO PERFORM IS NOT REMEDIED WITHIN THE EARLIER OF THIRTY
(30) DAYS AFTER (A) DELIVERY OF NOTICE THEREOF TO SELLER BY BUYER, OR (B) ACTUAL
KNOWLEDGE ON THE PART OF SELLER OF SUCH BREACH OR FAILURE TO PERFORM; PROVIDED
THAT, IF BUYER DETERMINES, IN ITS SOLE DISCRETION, THAT ANY SUCH BREACH IS
CAPABLE OF BEING CURED AND SELLER IS DILIGENTLY AND CONTINUOUSLY PURSUING SUCH A
CURE IN GOOD FAITH BUT IS NOT ABLE TO DO SO ON A TIMELY BASIS, SELLER SHALL HAVE
AN ADDITIONAL PERIOD OF TIME, NOT TO EXCEED THIRTY (30) ADDITIONAL DAYS, WITHIN
WHICH TO COMPLETE SUCH CURE.
(B)
AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT, SELLER HEREBY APPOINTS BUYER AS ATTORNEY-IN-FACT OF SELLER FOR THE
PURPOSE OF CARRYING OUT THE PROVISIONS OF THIS AGREEMENT AND TAKING ANY ACTION
AND EXECUTING OR ENDORSING ANY INSTRUMENTS THAT BUYER MAY DEEM NECESSARY OR
ADVISABLE TO ACCOMPLISH THE PURPOSES HEREOF, WHICH APPOINTMENT AS
ATTORNEY-IN-FACT IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
IF AN EVENT OF
DEFAULT SHALL OCCUR AND BE CONTINUING WITH RESPECT TO SELLER, THE FOLLOWING
RIGHTS AND REMEDIES SHALL BE AVAILABLE TO BUYER:
(I)
AT THE OPTION OF BUYER, EXERCISED BY WRITTEN NOTICE TO SELLER
(WHICH OPTION SHALL BE DEEMED TO HAVE BEEN EXERCISED, EVEN IF NO NOTICE IS
GIVEN, IMMEDIATELY UPON THE OCCURRENCE OF AN ACT OF INSOLVENCY WITH RESPECT TO
SELLER), THE REPURCHASE DATE FOR EACH TRANSACTION HEREUNDER SHALL, IF IT HAS NOT
ALREADY OCCURRED, BE DEEMED IMMEDIATELY TO OCCUR (THE DATE ON WHICH SUCH OPTION
IS EXERCISED OR DEEMED TO HAVE BEEN EXERCISED BEING REFERRED TO HEREINAFTER AS