TO
ANY HEDGING TRANSACTION AND A DEFAULT OR BREACH OCCURS THEREUNDER ON THE PART OF
SELLER WHICH RESULTS IN THE EARLY TERMINATION OF SUCH HEDGING TRANSACTION OR
OTHERWISE IS NOT CURED WITHIN THE CURE PERIOD FOR SUCH DEFAULT OR BREACH
PROVIDED UNDER THE TERMS AND CONDITIONS OF SUCH HEDGING TRANSACTION;
(III)
FAILURE OF BUYER TO RECEIVE NO LATER THAN ONE (1) BUSINESS DAY
FOLLOWING ANY REMITTANCE DATE THE ACCRUED, BUT UNPAID PRICE DIFFERENTIAL (LESS
ANY AMOUNT OF SUCH PRICE DIFFERENTIAL PREVIOUSLY PAID BY SELLER TO BUYER)
(INCLUDING, WITHOUT LIMITATION, IN THE EVENT THE INCOME PAID OR DISTRIBUTED ON
OR IN RESPECT OF THE PURCHASED ASSETS IS INSUFFICIENT TO MAKE SUCH PAYMENT AND
SELLER DOES NOT MAKE SUCH PAYMENT OR CAUSE SUCH PAYMENT TO BE MADE);
(IV)
FAILURE OF BUYER TO RECEIVE THE REPURCHASE PRICE FOR ANY PURCHASED
ASSETS ON THE DATE THE SAME IS DUE UNDER THIS AGREEMENT (WHETHER ON THE
REPURCHASE DATE, EARLY REPURCHASE DATE OR OTHERWISE AS PROVIDED HEREIN);
38
(V)
FAILURE OF A SELLER TO MAKE ANY OTHER PAYMENT (I.E., A PAYMENT OF
A TYPE NOT SPECIFIED IN ANY OTHER CLAUSE OF THIS SECTION 13) OWING TO BUYER
WHICH HAS BECOME DUE, WHETHER BY ACCELERATION OR OTHERWISE UNDER THE TERMS OF
THIS AGREEMENT WHICH FAILURE IS NOT REMEDIED WITHIN THE APPLICABLE PERIOD IN THE
CASE OF A FAILURE PURSUANT TO SECTION 3 OR THREE BUSINESS DAYS IN THE CASE OF
ANY OTHER SUCH FAILURE;
(VI)
ANY GOVERNMENTAL, REGULATORY, OR SELF-REGULATORY AUTHORITY SHALL
HAVE TAKEN ANY ACTION TO REMOVE, LIMIT, RESTRICT, SUSPEND OR TERMINATE THE
RIGHTS, PRIVILEGES, OR OPERATIONS OF A SELLER, WHICH SUSPENSION HAS A MATERIAL
ADVERSE EFFECT ON THE FINANCIAL CONDITION OR BUSINESS OPERATIONS OF A SELLER,
TAKEN AS A WHOLE;
(VII)
BUYER SHALL HAVE DETERMINED, IN GOOD FAITH, (A) THAT THERE HAS
BEEN A MATERIAL ADVERSE CHANGE IN THE CORPORATE STRUCTURE WITH RESPECT TO SELLER
(INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THE PROVISIONS OF SECTION 12
HEREOF) OR FINANCIAL CONDITION OR CREDITWORTHINESS, TAKEN AS A WHOLE, OF A
SELLER; (B) THAT A SELLER WILL NOT MEET OR HAS BREACHED ANY OF ITS OBLIGATIONS
UNDER ANY TRANSACTION PURSUANT TO ANY OF THE TRANSACTION DOCUMENTS; OR (C) THAT
A MATERIAL ADVERSE CHANGE IN THE FINANCIAL CONDITION OF A SELLER MAY OCCUR DUE
TO THE PENDENCY OF A MATERIAL LEGAL ACTION AGAINST A SELLER;
(VIII)
AN ACT OF INSOLVENCY SHALL HAVE OCCURRED WITH RESPECT TO EITHER
SELLER;
(IX)
ANY (A) REPRESENTATION OR WARRANTY MADE BY A SELLER SHALL HAVE
BEEN INCORRECT OR UNTRUE IN ANY MATERIAL RESPECT WHEN MADE OR REPEATED OR DEEMED
TO HAVE BEEN MADE OR REPEATED; PROVIDED, HOWEVER THAT BUYER'S REMEDY FOR A
BREACH OF A REPRESENTATION AND WARRANTY WITH RESPECT TO ANY PURCHASED ASSET
SHALL BE TO MARK SUCH PURCHASED ASSET TO MARKET; OR (B) COVENANT MADE BY A
SELLER SHALL HAVE BEEN BREACHED IN A MATERIAL RESPECT;
(X)
A FINAL JUDGMENT BY ANY COMPETENT COURT IN THE UNITED STATES OF
AMERICA FOR THE PAYMENT OF MONEY IN AN AMOUNT GREATER THAN $10,000,000