THAT TERM IS DEFINED IN SECTION 741 OF TITLE 11 OF THE UNITED
STATES CODE, AS AMENDED (EXCEPT INSOFAR AS THE TYPE OF PURCHASED ASSETS SUBJECT
TO SUCH TRANSACTION WOULD RENDER SUCH DEFINITION APPLICABLE).
(B)
IT IS UNDERSTOOD THAT ANY PARTY'S RIGHT TO
LIQUIDATE PURCHASED ASSETS DELIVERED TO IT IN CONNECTION WITH TRANSACTIONS
HEREUNDER OR TO EXERCISE ANY OTHER REMEDIES PURSUANT TO SECTION 10.02 HEREOF IS
A CONTRACTUAL RIGHT TO LIQUIDATE SUCH TRANSACTION AS DESCRIBED IN SECTIONS 555
AND 559 OF TITLE 11 OF THE UNITED STATES CODE, AS AMENDED.
87
(C)
THE PARTIES AGREE AND ACKNOWLEDGE THAT IF A
PARTY HERETO IS AN "INSURED DEPOSITORY INSTITUTION," AS SUCH TERM IS DEFINED IN
THE FEDERAL DEPOSIT INSURANCE ACT, AS AMENDED ("FDIA"), THEN EACH TRANSACTION
HEREUNDER IS A "QUALIFIED FINANCIAL CONTRACT," AS THAT TERM IS DEFINED IN FDIA
AND ANY RULES, ORDERS OR POLICY STATEMENTS THEREUNDER (EXCEPT INSOFAR AS THE
TYPE OF PURCHASED ASSETS SUBJECT TO SUCH TRANSACTION WOULD RENDER SUCH
DEFINITION INAPPLICABLE).
(D)
IT IS UNDERSTOOD THAT THIS AGREEMENT
CONSTITUTES A "NETTING CONTRACT" AS DEFINED IN AND SUBJECT TO TITLE IV OF THE
FEDERAL DEPOSIT INSURANCE CORPORATION IMPROVEMENT ACT OF 1991 ("FDICIA") AND
EACH PAYMENT ENTITLEMENT AND PAYMENT OBLIGATION UNDER ANY TRANSACTION HEREUNDER
SHALL CONSTITUTE A "COVERED CONTRACTUAL PAYMENT ENTITLEMENT" OR "COVERED
CONTRACTUAL PAYMENT OBLIGATION", RESPECTIVELY, AS DEFINED IN AND SUBJECT TO
FDICIA (EXCEPT INSOFAR AS ONE OR BOTH OF THE PARTIES IS NOT A "FINANCIAL
INSTITUTION" AS THAT TERM IS DEFINED IN FDICIA OR REGULATIONS PROMULGATED
THEREUNDER).
SECTION 13.10
JOINT AND SEVERAL LIABILITY.
(A)
EACH SELLER HEREBY ACKNOWLEDGES AND AGREES
THAT THE SELLER SHALL BE JOINTLY AND SEVERALLY LIABLE TO THE AGENT AND EACH
BUYER TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW FOR ALL REPRESENTATIONS,
WARRANTIES, COVENANTS, OBLIGATIONS AND INDEMNITIES OF ALL OF THE SELLERS
HEREUNDER.
(B)
EACH SELLER HEREBY AGREES THAT, TO THE
EXTENT ANOTHER SELLER SHALL HAVE PAID MORE THAN ITS PROPORTIONATE SHARE OF ANY
PAYMENT MADE HEREUNDER, THE SELLER SHALL BE ENTITLED TO SEEK AND RECEIVE
CONTRIBUTION FROM AND AGAINST ANY OTHER SELLER WHICH HAS NOT PAID ITS
PROPORTIONATE SHARE OF SUCH PAYMENT; PROVIDED HOWEVER, THAT THE PROVISIONS OF
THIS CLAUSE SHALL IN NO RESPECT LIMIT THE OBLIGATIONS AND LIABILITIES OF ANY
SELLER TO THE AGENT OR ANY BUYER, AND, NOTWITHSTANDING ANY PAYMENT OR PAYMENTS
MADE BY ANY SELLER (THE "PAYING SELLER") HEREUNDER OR ANY SET-OFF OR APPLICATION
OF FUNDS OF THE PAYING SELLER BY THE AGENT OR ANY BUYER, THE PAYING SELLER SHALL
NOT BE ENTITLED TO BE SUBROGATED TO ANY OF THE RIGHTS OF THE AGENT OR ANY BUYER
AGAINST ANY OTHER SELLER OR ANY COLLATERAL SECURITY OR GUARANTEE OR RIGHT OF
OFFSET HELD BY THE AGENT OR ANY BUYER, NOR SHALL THE PAYING SELLER SEEK OR BE
ENTITLED TO SEEK ANY CONTRIBUTION OR REIMBURSEMENT FROM THE OTHER SELLER IN
RESPECT OF PAYMENTS MADE BY THE PAYING SELLER HEREUNDER, UNTIL ALL AMOUNTS OWING
TO THE AGENT OR ANY BUYER BY THE SELLERS UNDER THE REPURCHASE DOCUMENTS ARE PAID
IN FULL.
IF ANY