INDENTURE
TRUSTEE AND THE CLASS A NOTEHOLDERS IN THE CONDUCT OF ANY PREFERENCE CLAIM
RELATING TO A FINAL ORDER, INCLUDING, WITHOUT LIMITATION, ALL RIGHTS OF ANY
PARTY TO ANY ADVERSARIAL PROCEEDING OR ACTION WITH RESPECT TO ANY COURT ORDER
ISSUED IN CONNECTION WITH ANY SUCH PREFERENCE CLAIM; PROVIDED, THAT SUCH
SUBROGATION RIGHTS SHALL REMAIN SUBJECT TO THE LAST SENTENCE OF PARAGRAPH (A) OF
THIS SECTION 3.10.
ARTICLE IV
THE DEPOSITOR
SECTION 4.1.
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor makes the following representations and warranties on which the
Trust shall be deemed to have relied in accepting the Trust Property.
The
representations and warranties speak as of the execution and delivery of this
Agreement and as of each Additional Contract Purchase Date and shall survive the
sale, transfer, assignment and conveyance of the Trust Property to the Trust
pursuant to this Agreement and the pledge of the Trust Property to the Indenture
Trustee pursuant to the Indenture:
38
(A)
ORGANIZATION AND GOOD STANDING.
THE DEPOSITOR HAS BEEN DULY
ORGANIZED AND IS VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING UNDER THE
LAWS OF THE STATE OF DELAWARE, HAS THE POWER, AUTHORITY AND LEGAL RIGHT TO OWN
ITS PROPERTIES AND TO CONDUCT ITS BUSINESS AS SUCH PROPERTIES ARE CURRENTLY
OWNED AND SUCH BUSINESS IS CURRENTLY CONDUCTED, AND HAS THE POWER, AUTHORITY AND
LEGAL RIGHT TO ACQUIRE, OWN AND SELL THE CONTRACTS.
(B)
DUE QUALIFICATION.
THE DEPOSITOR IS DULY QUALIFIED TO DO BUSINESS
AS A FOREIGN CORPORATION IN GOOD STANDING AND HAS OBTAINED ALL NECESSARY
LICENSES AND APPROVALS IN EACH JURISDICTION IN WHICH THE FAILURE TO SO QUALIFY
OR TO OBTAIN SUCH LICENSES AND APPROVALS WOULD, IN THE REASONABLE JUDGMENT OF
THE DEPOSITOR, MATERIALLY AND ADVERSELY AFFECT THE PERFORMANCE BY THE DEPOSITOR
OF ITS OBLIGATIONS UNDER, OR THE VALIDITY OR ENFORCEABILITY OF, THIS AGREEMENT,
THE INDENTURE, THE TRUST AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS, THE
CONTRACTS OR THE NOTES.
(C)
POWER AND AUTHORITY.
THE DEPOSITOR HAS THE POWER AND AUTHORITY TO
EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY.
THE DEPOSITOR HAS THE POWER AND
AUTHORITY TO SELL, ASSIGN, TRANSFER AND CONVEY THE PROPERTY TO BE TRANSFERRED TO
AND DEPOSITED WITH THE TRUST AND HAS DULY AUTHORIZED SUCH TRANSFER AND DEPOSIT
BY ALL NECESSARY CORPORATE ACTION, AND THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH THE DEPOSITOR IS
A PARTY HAVE BEEN DULY AUTHORIZED BY THE DEPOSITOR BY ALL NECESSARY CORPORATE
ACTION.
(D)
VALID TRANSFER; BINDING OBLIGATION.
THIS AGREEMENT EFFECTS A
VALID SALE, TRANSFER, ASSIGNMENT AND CONVEYANCE TO THE TRUST OF THE CONTRACTS
AND THE OTHER TRUST PROPERTY ENFORCEABLE AGAINST CREDITORS OF AND PURCHASERS
FROM THE DEPOSITOR.
THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH
THE DEPOSITOR IS A PARTY CONSTITUTE LEGAL, VALID AND BINDING OBLIGATIONS OF THE
DEPOSITOR, ENFORCEABLE AGAINST THE DEPOSITOR IN ACCORDANCE WITH THEIR TERMS,
SUBJECT, AS TO ENFORCEABILITY, TO APPLICABLE BANKRUPTCY, INSOLVENCY,
REORGANIZATION, CONSERVATORSHIP, RECEIVERSHIP,