TRANSACTION DOCUMENTS, ALL OF THE RIGHTS AND REMEDIES PROVIDED BY APPLICABLE
FEDERAL, STATE, FOREIGN, AND LOCAL LAWS (INCLUDING, WITHOUT LIMITATION, IF THE
TRANSACTIONS ARE RECHARACTERIZED AS SECURED FINANCINGS, THE RIGHTS AND REMEDIES
OF A SECURED PARTY UNDER THE UCC OF THE STATE OF NEW YORK, TO THE EXTENT THAT
THE UCC IS APPLICABLE, AND THE RIGHT TO OFFSET ANY MUTUAL DEBT AND CLAIM), IN
EQUITY, AND UNDER ANY OTHER AGREEMENT BETWEEN BUYER AND SELLER.
WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, BUYER SHALL BE ENTITLED TO SET OFF THE
PROCEEDS OF THE LIQUIDATION OF THE PURCHASED SECURITIES AGAINST ALL OF SELLER'S
OBLIGATIONS TO BUYER, WHETHER OR NOT SUCH OBLIGATIONS ARE THEN DUE, WITHOUT
PREJUDICE TO BUYER'S RIGHT TO RECOVER ANY DEFICIENCY.
(VII)
SUBJECT TO THE NOTICE AND GRACE PERIODS SET FORTH HEREIN, BUYER
MAY EXERCISE ANY OR ALL OF THE REMEDIES AVAILABLE TO BUYER IMMEDIATELY UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT AND AT ANY TIME DURING THE CONTINUANCE
THEREOF.
ALL RIGHTS AND REMEDIES ARISING UNDER THE TRANSACTION
36
DOCUMENTS, AS AMENDED FROM TIME TO TIME, ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY
OTHER RIGHTS OR REMEDIES WHICH BUYER MAY HAVE.
(VIII)
BUYER MAY ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER WITHOUT PRIOR
JUDICIAL PROCESS OR HEARING, AND SELLER HEREBY EXPRESSLY WAIVES ANY DEFENSES
SELLER MIGHT OTHERWISE HAVE TO REQUIRE BUYER TO ENFORCE ITS RIGHTS BY JUDICIAL
PROCESS.
SELLER ALSO WAIVES ANY DEFENSE SELLER MIGHT OTHERWISE HAVE ARISING
FROM THE USE OF NONJUDICIAL PROCESS, DISPOSITION OF ANY OR ALL OF THE PURCHASED
SECURITIES, OR FROM ANY OTHER ELECTION OF REMEDIES.
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.
(B)
IF AN EVENT OF DEFAULT OCCURS AND IS CONTINUING WITH RESPECT TO
BUYER, THE FOLLOWING RIGHTS AND REMEDIES SHALL BE AVAILABLE TO SELLER:
(I)
UPON TENDER BY SELLER OF PAYMENT OF THE AGGREGATE REPURCHASE
PRICE FOR ALL PURCHASED SECURITIES, BUYER'S RIGHT, TITLE AND INTEREST IN SUCH
PURCHASED SECURITIES SHALL BE DEEMED TRANSFERRED TO SELLER, AND BUYER SHALL
DELIVER SUCH PURCHASED SECURITIES TO SELLER AT BUYER'S EXPENSE.
(II)
IF SELLER EXERCISES THE OPTION REFERRED TO IN SECTION 14(B)(I)
HEREOF AND BUYER FAILS TO DELIVER ANY PURCHASED SECURITIES TO SELLER, SELLER MAY
(A) PURCHASE SECURITIES ("REPLACEMENT COLLATERAL"), THAT ARE IN AS SIMILAR AN
AMOUNT AND INTEREST RATE AS IS REASONABLY PRACTICABLE AS SUCH PURCHASED
SECURITIES OR (B) IN ITS SOLE DISCRETION ELECT, IN LIEU OF PURCHASING
REPLACEMENT COLLATERAL, TO BE DEEMED TO HAVE PURCHASED REPLACEMENT COLLATERAL AT
A PRICE THEREFOR EQUAL TO THE MARKET VALUE OF SUCH PURCHASED SECURITIES AS OF
SUCH DATE.
(III)
BUYER SHALL BE LIABLE TO SELLER FOR ANY EXCESS OF THE PRICE PAID
(OR DEEMED PAID) BY SELLER FOR REPLACEMENT COLLATERAL THEREFOR OVER THE
REPURCHASE PRICE FOR THE PURCHASED SECURITIES REPLACED THEREBY.
15.
SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will enter into
each Transaction hereunder in consideration of and in reliance upon