MANNER PROVIDED BY
LAW.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(B)
THE CAPTIONS IN THIS AGREEMENT ARE INCLUDED
FOR CONVENIENCE ONLY AND IN NO WAY DEFINE OR LIMIT ANY OF THE PROVISIONS HEREOF
OR OTHERWISE AFFECT THEIR CONSTRUCTION OR EFFECT.
25
(C)
IN THE EVENT ANY PROVISION OF THIS
AGREEMENT SHALL BE HELD INVALID OR UNENFORCEABLE BY ANY COURT OF COMPETENT
JURISDICTION, SUCH HOLDING SHALL NOT INVALIDATE OR RENDER UNENFORCEABLE ANY
OTHER PROVISION HEREOF.
(D)
THIS AGREEMENT (INCLUDING EXHIBIT A ATTACHED
HERETO) MAY NOT BE AMENDED OR MODIFIED OR ANY PROVISION THEREOF WAIVED
(I) EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY BOTH OF THE PARTIES HERETO OR,
IN THE CASE OF A WAIVER, BY THE PARTY WAIVING COMPLIANCE AND (II) IN EACH CASE,
IN COMPLIANCE WITH SECTION 15.1(F) OF THE INDENTURE, INCLUDING WITH RESPECT TO
SATISFACTION OF THE RATING AGENCY CONDITION.
THIS AGREEMENT (INCLUDING
EXHIBIT A ATTACHED HERETO) MAY BE MODIFIED WITHOUT THE PRIOR WRITTEN CONSENT OF
THE TRUSTEE, ANY HEDGE COUNTERPARTY OR THE HOLDERS OF NOTES TO CORRECT ANY
INCONSISTENCY OR CURE ANY AMBIGUITY OR MISTAKE.
ANY OTHER AMENDMENT OF THIS
AGREEMENT (INCLUDING EXHIBIT A ATTACHED HERETO) SHALL REQUIRE THE PRIOR WRITTEN
CONSENT OF THE TRUSTEE AND EACH HEDGE COUNTERPARTY, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD AND IS SUBJECT TO THE SATISFACTION OF THE RATING AGENCY
CONDITION.
(E)
THIS AGREEMENT CONSTITUTES THE ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES HERETO AND SUPERSEDES ALL OTHER
PRIOR AND CONTEMPORANEOUS UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR
ORAL, BETWEEN THE PARTIES HERETO CONCERNING THIS SUBJECT MATTER (OTHER THAN THE
INDENTURE).
(F)
IN THE EVENT THE ISSUER ACQUIRES THE
MAYACAMA LOAN AFTER THE CLOSING DATE, THE COLLATERAL MANAGER AGREES TO USE
COMMERCIALLY REASONABLE EFFORTS, ON BEHALF OF THE ISSUER, TO APPOINT GMACCMC AS
THE PRIMARY SERVICER FOR THE MAYACAMA LOAN TO THE EXTENT IT HAS DISCRETION TO DO
SO IN ACCORDANCE WITH THE RELATED UNDERLYING INSTRUMENTS.
(G)
THE COLLATERAL MANAGER HEREBY AGREES AND
CONSENTS TO THE TERMS OF SECTION 15.1(F) OF THE INDENTURE APPLICABLE TO THE
COLLATERAL MANAGER AND SHALL PERFORM ANY PROVISIONS OF THE INDENTURE MADE
APPLICABLE TO THE COLLATERAL MANAGER BY THE INDENTURE AS REQUIRED BY
SECTION 15.1(F) OF THE INDENTURE.
(H)
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS, EACH OF WHICH SO EXECUTED SHALL BE DEEMED AN ORIGINAL, BUT ALL
SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE ONE AND THE SAME INSTRUMENT.
(I)
THE WORDS "INCLUDE," "INCLUDES" AND
"INCLUDING" SHALL BE DEEMED TO BE FOLLOWED BY THE PHRASE "BUT NOT LIMITED TO."
(J)
SUBJECT TO THE LAST SENTENCE OF THE
PENULTIMATE PARAGRAPH OF SECTION 1 HEREOF, IN THE EVENT OF A CONFLICT BETWEEN
THE TERMS OF THIS AGREEMENT AND THE INDENTURE, INCLUDING WITH RESPECT TO THE
OBLIGATIONS OF THE COLLATERAL MANAGER HEREUNDER AND THEREUNDER, THE TERMS OF
THIS AGREEMENT SHALL BE CONTROLLING.
(K)
NO FAILURE