BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
57
37.
ACKNOWLEDGEMENTS
Each Seller hereby acknowledges that:
(A)
IT HAS BEEN ADVISED BY COUNSEL IN THE
NEGOTIATION, EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE OTHER PROGRAM
DOCUMENTS TO WHICH IT IS A PARTY;
(B)
THE BUYER HAS NO FIDUCIARY RELATIONSHIP TO
THE SELLER; AND
(C)
NO JOINT VENTURE EXISTS AMONG OR BETWEEN
THE BUYER AND THE SELLER.
38.
HYPOTHECATION OR PLEDGE OF PURCHASED ITEMS.
The Buyer shall have free and unrestricted use of all Loans and Purchased Items
and nothing in this Agreement shall preclude the Buyer from engaging in
repurchase transactions with the Loans and Purchased Items or otherwise
pledging, repledging, transferring, hypothecating, or rehypothecating the Loans
and Purchased Items. Nothing contained in this Agreement shall obligate the
Buyer to segregate any Loans or Purchased Items delivered to the Buyer by the
Sellers.
39.
ASSIGNMENTS; PARTICIPATIONS.
(A)
THE SELLERS MAY ASSIGN ANY OF THEIR RIGHTS
OR OBLIGATIONS HEREUNDER ONLY WITH THE PRIOR WRITTEN CONSENT OF THE BUYER. THE
BUYER MAY ASSIGN OR TRANSFER TO ANY BANK OR OTHER FINANCIAL INSTITUTION THAT
MAKES OR INVESTS IN REPURCHASE AGREEMENTS OR LOANS OR ANY AFFILIATE OF THE BUYER
ALL OR ANY OF ITS RIGHTS UNDER THIS AGREEMENT AND THE OTHER PROGRAM DOCUMENTS.
(B)
THE BUYER MAY, IN ACCORDANCE WITH APPLICABLE
LAW, AT ANY TIME SELL TO ONE OR MORE ENTITIES ("PARTICIPANTS") PARTICIPATING
INTERESTS IN THIS AGREEMENT, ITS AGREEMENT TO PURCHASE LOANS, OR ANY OTHER
INTEREST OF THE BUYER HEREUNDER AND UNDER THE OTHER PROGRAM DOCUMENTS. IN THE
EVENT OF ANY SUCH SALE BY THE BUYER OF PARTICIPATING INTERESTS TO A PARTICIPANT,
THE BUYER'S OBLIGATIONS UNDER THIS AGREEMENT TO THE SELLERS SHALL REMAIN
UNCHANGED, THE BUYER SHALL REMAIN SOLELY RESPONSIBLE FOR THE PERFORMANCE THEREOF
AND THE SELLERS SHALL CONTINUE TO DEAL SOLELY AND DIRECTLY WITH THE BUYER IN
CONNECTION WITH THE BUYER'S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT AND THE
OTHER PROGRAM DOCUMENTS. THE SELLERS AGREE THAT IF AMOUNTS OUTSTANDING UNDER
THIS AGREEMENT ARE DUE OR UNPAID, OR SHALL HAVE BEEN DECLARED OR SHALL HAVE
BECOME DUE AND PAYABLE UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, EACH
PARTICIPANT SHALL BE DEEMED TO HAVE THE RIGHT OF SET-OFF IN RESPECT OF ITS
PARTICIPATING INTEREST IN AMOUNTS OWING UNDER THIS AGREEMENT TO THE SAME EXTENT
AS IF THE AMOUNT OF ITS PARTICIPATING INTEREST WERE OWING DIRECTLY TO IT AS A
BUYER UNDER THIS AGREEMENT; PROVIDED, THAT SUCH PARTICIPANT SHALL ONLY BE
ENTITLED TO SUCH RIGHT OF SET-OFF IF IT SHALL HAVE AGREED IN THE AGREEMENT
PURSUANT TO WHICH IT SHALL HAVE ACQUIRED ITS PARTICIPATING INTEREST TO SHARE
WITH THE BUYER THE PROCEEDS THEREOF. THE BUYER ALSO AGREES THAT EACH PARTICIPANT
SHALL BE ENTITLED TO THE BENEFITS OF SECTIONS 3(H), 3(I) AND 23 WITH RESPECT TO
ITS PARTICIPATION IN THE LOANS AND PURCHASED ITEMS OUTSTANDING FROM TIME TO
TIME; PROVIDED, THAT THE BUYER AND ALL PARTICIPANTS SHALL