IN THE SAME MANNER BECAUSE THE MARKET
FOR SUCH
PURCHASED ASSETS MAY NOT BE LIQUID.
IN VIEW OF THE NATURE OF THE
PURCHASED ASSETS, THE PARTIES AGREE THAT LIQUIDATION OF A TRANSACTION OR THE
PURCHASED ASSETS DOES NOT REQUIRE A PUBLIC PURCHASE OR SALE AND
65
THAT A GOOD FAITH PRIVATE PURCHASE OR SALE (OTHER THAN TO AN AFFILIATE OF BUYER)
SHALL BE DEEMED TO HAVE BEEN MADE IN A COMMERCIALLY REASONABLE MANNER.
ACCORDINGLY, BUYER MAY ELECT, IN ITS SOLE DISCRETION, THE TIME AND MANNER OF
LIQUIDATING ANY PURCHASED ASSETS, AND NOTHING CONTAINED HEREIN SHALL (A)
OBLIGATE BUYER TO LIQUIDATE ANY PURCHASED ASSETS ON THE OCCURRENCE AND DURING
THE CONTINUANCE OF AN EVENT OF DEFAULT OR TO LIQUIDATE ALL OF THE PURCHASED
ASSETS IN THE SAME MANNER OR ON THE SAME BUSINESS DAY OR (B) CONSTITUTE A WAIVER
OF ANY RIGHT OR REMEDY OF BUYER.
(V)
SELLER SHALL BE LIABLE TO BUYER FOR (A) THE AMOUNT OF ALL ACTUAL
OUT-OF-POCKET EXPENSES, INCLUDING REASONABLE LEGAL FEES AND EXPENSES, ACTUALLY
INCURRED BY BUYER IN CONNECTION WITH OR AS A CONSEQUENCE OF AN EVENT OF DEFAULT
WITH RESPECT TO SELLER AND (B) ALL COSTS INCURRED BY BUYER IN CONNECTION WITH
HEDGING TRANSACTIONS IN THE EVENT THAT SELLER, FROM AND AFTER AN EVENT OF
DEFAULT, TAKES ANY ACTION TO IMPEDE OR OTHERWISE AFFECT BUYER'S REMEDIES UNDER
THIS AGREEMENT.
(VI)
BUYER SHALL HAVE, IN ADDITION TO ITS RIGHTS AND REMEDIES UNDER THE
TRANSACTION DOCUMENTS, ALL OF THE RIGHTS AND REMEDIES PROVIDED BY APPLICABLE
FEDERAL, STATE, FOREIGN (WHERE RELEVANT), 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 ASSETS
AGAINST ALL OF SELLER'S OBLIGATIONS TO BUYER UNDER THIS AGREEMENT, WITHOUT
PREJUDICE TO BUYER'S RIGHT TO RECOVER ANY DEFICIENCY.
(VII)
BUYER MAY EXERCISE ANY OR ALL OF THE REMEDIES AVAILABLE TO BUYER
IMMEDIATELY UPON THE OCCURRENCE OF AN EVENT OF DEFAULT WITH RESPECT TO SELLER
AND AT ANY TIME DURING THE CONTINUANCE THEREOF.
ALL RIGHTS AND REMEDIES ARISING
UNDER THE TRANSACTION DOCUMENTS, AS AMENDED FROM TIME TO TIME, ARE CUMULATIVE
AND NOT EXCLUSIVE OF ANY OTHER RIGHTS OR REMEDIES THAT 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, TO THE EXTENT PERMITTED BY LAW, ANY DEFENSE SELLER
MIGHT OTHERWISE HAVE ARISING FROM THE USE OF NONJUDICIAL PROCESS, DISPOSITION OF
ANY OR ALL OF THE PURCHASED ASSETS, OR FROM ANY OTHER ELECTION OF REMEDIES.
SELLER RECOGNIZES THAT NONJUDICIAL REMEDIES ARE