ACKNOWLEDGE THAT, THE OBLIGATIONS OF THE SELLERS
UNDER THIS AGREEMENT ARE RECOURSE OBLIGATIONS OF THE SELLERS.
(B)
THE SELLERS AGREE TO PAY AS AND WHEN BILLED
BY THE BUYER ALL OF THE OUT-OF POCKET COSTS AND EXPENSES INCURRED BY THE BUYER
IN CONNECTION WITH THE DEVELOPMENT, PREPARATION AND EXECUTION OF, AND ANY
AMENDMENT, SUPPLEMENT OR MODIFICATION TO, THIS AGREEMENT, ANY OTHER PROGRAM
DOCUMENT OR ANY OTHER DOCUMENTS PREPARED IN CONNECTION HEREWITH OR THEREWITH.
THE SELLERS AGREE TO PAY AS AND WHEN BILLED BY THE BUYER ALL OF THE
OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE CONSUMMATION
AND ADMINISTRATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
INCLUDING, WITHOUT LIMITATION, (I) ALL THE REASONABLE FEES, DISBURSEMENTS AND
EXPENSES OF COUNSEL TO THE BUYER AND (II) ALL THE DUE DILIGENCE, INSPECTION,
TESTING AND REVIEW COSTS AND EXPENSES INCURRED BY THE BUYER WITH RESPECT TO
PURCHASED ITEMS UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE COSTS
AND EXPENSES INCURRED BY THE BUYER PURSUANT TO SECTIONS 23, 39 AND 44 HEREOF
OTHER THAN ANY COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE BUYER'S
REHYPOTHECATION OF THE PURCHASED LOANS PRIOR TO AN EVENT OF DEFAULT. SELLERS
ALSO AGREE NOT TO ASSERT ANY CLAIM AGAINST BUYER OR ANY OF ITS AFFILIATES, OR
ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, ON
ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE
DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THE PROGRAM DOCUMENTS, THE
ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE TRANSACTIONS, THIS AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THE FOREGOING INDEMNITY
AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE
NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR
54
WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
(C)
IF SELLERS FAIL TO PAY WHEN DUE ANY COSTS,
EXPENSES OR OTHER AMOUNTS PAYABLE BY THEM UNDER THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, REASONABLE FEES AND EXPENSES OF COUNSEL AND INDEMNITIES,
SUCH AMOUNT MAY BE PAID ON BEHALF OF SELLERS BY BUYER, IN ITS SOLE DISCRETION
AND SELLERS SHALL REMAIN LIABLE FOR ANY SUCH PAYMENTS BY BUYER. NO SUCH PAYMENT
BY BUYER SHALL BE DEEMED A WAIVER OF ANY OF BUYER'S RIGHTS UNDER THE PROGRAM
DOCUMENTS.
(D)
WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF SELLERS HEREUNDER, THE COVENANTS AND OBLIGATIONS OF SELLERS
CONTAINED IN THIS SECTION 23 SHALL SURVIVE THE PAYMENT IN FULL OF THE REPURCHASE
PRICE AND ALL OTHER AMOUNTS PAYABLE HEREUNDER AND DELIVERY OF THE PURCHASED
LOANS BY BUYER AGAINST FULL PAYMENT THEREFOR.
24.
WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
Each Seller hereby expressly waives, to the fullest extent permitted by law,
every statute of limitation on a deficiency judgment, any reduction in the
proceeds of any Purchased Items as a result of restrictions upon Buyer or
Custodian contained in the Program Documents or any other instrument delivered
in connection therewith, and any right that it may have to direct the order in
which any of the Purchased Items shall be disposed of in