PROVIDED, HOWEVER, THAT BUYER SHALL TRANSFER THE IDENTICAL PURCHASED ASSETS TO
SELLER ON THE APPLICABLE REPURCHASE DATE FREE AND CLEAR OF ANY PLEDGE, LIEN,
SECURITY INTEREST, ENCUMBRANCE, CHARGE OR OTHER ADVERSE CLAIM ON ANY OF THE
PURCHASED ASSETS.
NOTHING CONTAINED IN THIS AGREEMENT SHALL OBLIGATE BUYER TO
SEGREGATE ANY PURCHASED ASSETS OR PURCHASED ITEMS TRANSFERRED TO BUYER BY
SELLER.
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ARTICLE 19.
GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
ARTICLE 20.
NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder by any party shall constitute a waiver of its right to exercise any
other remedy hereunder.
No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto.
Without limitation on any of the foregoing, the failure to give
a notice pursuant to Articles 4(a) or 4(b) hereof will not constitute a waiver
of any right to do so at a later date.
ARTICLE 21.
USE OF EMPLOYEE PLAN ASSETS
(A)
IF ASSETS OF AN EMPLOYEE BENEFIT PLAN SUBJECT TO ANY PROVISION OF
ERISA ARE INTENDED TO BE USED BY EITHER PARTY HERETO (THE "PLAN PARTY") IN A
TRANSACTION, THE PLAN PARTY SHALL SO NOTIFY THE OTHER PARTY PRIOR TO THE
TRANSACTION.
THE PLAN PARTY SHALL REPRESENT IN WRITING TO THE OTHER PARTY THAT
THE TRANSACTION DOES NOT CONSTITUTE A PROHIBITED TRANSACTION UNDER ERISA OR IS
OTHERWISE EXEMPT THEREFROM, AND THE OTHER PARTY MAY PROCEED IN RELIANCE THEREON
BUT SHALL NOT BE REQUIRED SO TO PROCEED.
(B)
SUBJECT TO THE LAST SENTENCE OF SUBPARAGRAPH (A) OF THIS ARTICLE,
ANY SUCH TRANSACTION SHALL PROCEED ONLY IF SELLER FURNISHES OR HAS FURNISHED TO
BUYER ITS MOST RECENT AVAILABLE AUDITED STATEMENT OF ITS FINANCIAL CONDITION AND
ITS MOST RECENT SUBSEQUENT UNAUDITED STATEMENT OF ITS FINANCIAL CONDITION.
(C)
BY ENTERING INTO A TRANSACTION, PURSUANT TO THIS ARTICLE, SELLER
SHALL BE DEEMED (I) TO REPRESENT TO BUYER THAT SINCE THE DATE OF SELLER'S LATEST
SUCH FINANCIAL STATEMENTS, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN SELLER'S
FINANCIAL CONDITION THAT SELLER HAS NOT DISCLOSED TO BUYER, AND (II) TO AGREE TO
PROVIDE BUYER WITH FUTURE AUDITED AND UNAUDITED STATEMENTS OF ITS FINANCIAL
CONDITION AS THEY ARE ISSUED, SO LONG AS IT IS SELLER IN ANY OUTSTANDING
TRANSACTION INVOLVING A PLAN PARTY.
ARTICLE 22.
INTENT
(A)
THE PARTIES RECOGNIZE THAT EACH TRANSACTION IS A "REPURCHASE
AGREEMENT" AS THAT TERM IS DEFINED IN SECTION 101(47) OF TITLE 11 OF THE UNITED
STATES CODE, AS AMENDED (EXCEPT INSOFAR AS THE TYPE OF ASSETS SUBJECT TO SUCH
TRANSACTION OR THE TERM OF SUCH TRANSACTION WOULD
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RENDER SUCH DEFINITION INAPPLICABLE), AND