COVERING AND/OR RELATED HEDGING
TRANSACTIONS; THIRD TO THE AGGREGATE REPURCHASE PRICE; AND FOURTH TO ANY OTHER
OUTSTANDING OBLIGATION OF ANY SELLER TO THE AGENT OR ANY BUYER OR ANY OF THEIR
RESPECTIVE AFFILIATES UNDER THIS AGREEMENT.
(V)
EACH SELLER AGREES THAT THE AGENT MAY SEEK
TO OBTAIN AN INJUNCTION OR AN ORDER OF SPECIFIC PERFORMANCE TO COMPEL THE SELLER
TO FULFILL ANY OF ITS OBLIGATIONS AS SET FORTH IN ARTICLE XI, IF THE SELLER
FAILS OR REFUSES TO PERFORM ITS OBLIGATIONS AS SET FORTH THEREIN.
(VI)
EACH SELLER SHALL BE LIABLE TO THE AGENT,
PAYABLE AS AND WHEN INCURRED BY THE AGENT, FOR (A) THE AMOUNT OF ALL ACTUAL
OUT-OF-POCKET EXPENSES, INCLUDING LEGAL OR OTHER EXPENSES INCURRED BY THE AGENT
IN CONNECTION WITH OR AS A CONSEQUENCE OF ANY
73
EVENT OF DEFAULT, AND (B) ALL COSTS INCURRED IN CONNECTION WITH HEDGING OR
COVERING TRANSACTIONS.
(VII)
THE AGENT SHALL HAVE, IN ADDITION TO ITS RIGHTS
HEREUNDER, ANY RIGHTS OTHERWISE AVAILABLE TO IT UNDER ANY OTHER AGREEMENT OR
APPLICABLE LAW.
(B)
THE AGENT MAY EXERCISE ONE OR MORE OF THE
REMEDIES AVAILABLE TO THE AGENT IMMEDIATELY UPON AND DURING THE CONTINUANCE OF
AN EVENT OF DEFAULT AND, EXCEPT TO THE EXTENT PROVIDED IN
SECTIONS 10.02(A)(I) AND 10.02(A)(IV), AT ANY TIME THEREAFTER WITHOUT NOTICE TO
ANY SELLER.
ALL RIGHTS AND REMEDIES ARISING UNDER THIS AGREEMENT AS AMENDED
FROM TIME TO TIME HEREUNDER ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER RIGHTS
OR REMEDIES WHICH THE AGENT MAY HAVE.
(C)
THE AGENT MAY ENFORCE ITS RIGHTS AND
REMEDIES HEREUNDER WITHOUT PRIOR JUDICIAL PROCESS OR HEARING, AND EACH SELLER
HEREBY EXPRESSLY WAIVES ANY DEFENSES THE SELLER MIGHT OTHERWISE HAVE TO REQUIRE
THE AGENT TO ENFORCE ITS RIGHTS BY JUDICIAL PROCESS.
EACH SELLER ALSO WAIVES
ANY DEFENSE (OTHER THAN A DEFENSE OF PAYMENT OR PERFORMANCE) THE SELLER MIGHT
OTHERWISE HAVE ARISING FROM THE USE OF NONJUDICIAL PROCESS, ENFORCEMENT AND SALE
OF ALL OR ANY PORTION OF THE PURCHASED ITEMS, OR FROM ANY OTHER ELECTION OF
REMEDIES.
EACH SELLER RECOGNIZES THAT NONJUDICIAL REMEDIES ARE CONSISTENT WITH
THE USAGES OF THE TRADE, ARE RESPONSIVE TO COMMERCIAL NECESSITY AND ARE THE
RESULT OF A BARGAIN AT ARM'S-LENGTH.
(D)
TO THE EXTENT PERMITTED BY APPLICABLE LAW
EACH SELLER SHALL BE LIABLE TO THE AGENT FOR INTEREST ON ANY AMOUNTS OWING BY
THE SELLER HEREUNDER, FROM THE DATE THE SELLER BECOMES LIABLE FOR SUCH AMOUNTS
HEREUNDER UNTIL SUCH AMOUNTS ARE (I) PAID IN FULL OR (II) SATISFIED IN FULL BY
THE EXERCISE OF THE AGENT'S RIGHTS HEREUNDER.
INTEREST ON ANY SUM PAYABLE BY
ANY SELLER TO THE AGENT UNDER THIS SECTION 10.02(D) SHALL BE AT A RATE EQUAL TO
THE POST-DEFAULT RATE.
ARTICLE XI
SERVICING
SECTION 11.01
SELLER COVENANTS.
EACH SELLER COVENANTS
TO CAUSE THE SERVICING OF THE MORTGAGE ASSETS (OTHER THAN JUNIOR INTERESTS,
CMBS, RMBS AND PASS-THROUGH INTERESTS) TO BE MAINTAINED IN CONFORMITY WITH
ACCEPTED SERVICING PRACTICES AND IN A MANNER AT LEAST EQUAL IN QUALITY TO THE
SERVICING THE SELLER WOULD PROVIDE FOR MORTGAGE ASSETS WHICH IT