THE
APPLICABLE REPRESENTATIONS AND WARRANTIES SET FORTH IN EXHIBIT VIII. IT IS
UNDERSTOOD AND AGREED THAT THE REPRESENTATIONS AND WARRANTIES SET FORTH IN
EXHIBIT VIII AND SUCH OTHER REPRESENTATIONS AND WARRANTIES AS ARE MADE BY SELLER
TO BUYER WITH RESPECT TO THE UNDERLYING ASSETS, IF ANY (INCLUDING, WITHOUT
LIMITATION, ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER PURSUANT TO
SECTION 9(D) HEREOF), SHALL SURVIVE DELIVERY OF THE RESPECTIVE PURCHASED ASSET
FILE TO BUYER OR ITS DESIGNEE (INCLUDING THE CUSTODIAN). SELLER OR ITS DESIGNEE
IS IN POSSESSION OF A COMPLETE, TRUE AND ACCURATE PURCHASED ASSET FILE WITH
RESPECT TO EACH PURCHASED ASSET, EXCEPT FOR SUCH DOCUMENTS AS HAVE BEEN
DELIVERED TO BUYER. ANY PROVISION HEREOF TO THE CONTRARY NOTWITHSTANDING,
BUYER'S REMEDY FOR A BREACH OF THIS REPRESENTATION AND WARRANTY WITH RESPECT TO
ANY PURCHASED ASSET SHALL BE TO MARK SUCH PURCHASED ASSET TO MARKET; PROVIDED,
HOWEVER, THAT IN THE EVENT THAT A BREACH OF THIS REPRESENTATION AND WARRANTY
CAUSES A BREACH OF SOME OTHER COVENANT OF SELLER HEREUNDER (SUCH AS TO MAINTAIN
ADEQUATE MARGIN), THEN BUYER SHALL BE ENTITLED TO EXERCISE ALL RIGHTS AND
REMEDIES GRANTED TO IT HEREUNDER.
(IX)
ADEQUATE CAPITALIZATION: NO FRAUDULENT TRANSFER. EACH SELLER HAS,
AS OF SUCH PURCHASE DATE, ADEQUATE CAPITAL FOR THE NORMAL OBLIGATIONS REASONABLY
FORESEEABLE IN A BUSINESS OF ITS SIZE AND CHARACTER AND IN LIGHT OF ITS
CONTEMPLATED BUSINESS OPERATIONS. EACH SELLER IS GENERALLY ABLE TO PAY, AND AS
OF THE DATE HEREOF IS PAYING, ITS DEBTS AS THEY COME DUE. NEITHER SELLER HAS
BECOME, OR IS PRESENTLY,
31
FINANCIALLY INSOLVENT NOR WILL EITHER SELLER BE MADE INSOLVENT BY VIRTUE OF SUCH
SELLER'S EXECUTION OF OR PERFORMANCE UNDER ANY OF THE TRANSACTION DOCUMENTS
WITHIN THE MEANING OF THE BANKRUPTCY LAWS OR THE INSOLVENCY LAWS OF ANY
JURISDICTION. NEITHER SELLER HAS ENTERED INTO ANY TRANSACTION DOCUMENT OR ANY
TRANSACTION PURSUANT THERETO IN CONTEMPLATION OF INSOLVENCY OR WITH INTENT TO
HINDER, DELAY OR DEFRAUD ANY CREDITOR.
(X)
CONSENTS. NO CONSENT, APPROVAL OR OTHER ACTION OF, OR FILING BY
SELLER WITH, ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON IS REQUIRED TO
AUTHORIZE, OR IS OTHERWISE REQUIRED IN CONNECTION WITH, THE EXECUTION, DELIVERY
AND PERFORMANCE OF ANY OF THE TRANSACTION DOCUMENTS (OTHER THAN CONSENTS,
APPROVALS AND FILINGS THAT HAVE BEEN OBTAINED OR MADE, AS APPLICABLE).
(XI)
OWNERSHIP. EACH SELLER IS A PUBLICLY HELD CORPORATION.
(XII)
ORGANIZATIONAL DOCUMENTS. SELLER HAS DELIVERED TO BUYER CERTIFIED
COPIES OF ITS FORMATION, ORGANIZATIONAL AND OTHER GOVERNING DOCUMENTS, TOGETHER
WITH ALL AMENDMENTS THERETO.
(XIII)
NO ENCUMBRANCES. THERE ARE (I) NO OUTSTANDING RIGHTS, OPTIONS,
WARRANTS OR AGREEMENTS ON THE PART OF SELLER FOR A PURCHASE, SALE OR ISSUANCE,
IN CONNECTION WITH THE PURCHASED ASSETS AND (II) NO AGREEMENTS ON THE PART OF
SELLER TO ISSUE, SELL OR DISTRIBUTE THE PURCHASED ASSETS.
(XIV)
FEDERAL REGULATIONS. SELLER IS NOT (A) REQUIRED TO REGISTER AS AN
"INVESTMENT COMPANY," OR A COMPANY "CONTROLLED BY AN INVESTMENT COMPANY," UNDER
OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, OR (B) A "HOLDING COMPANY,"
OR A "SUBSIDIARY COMPANY OF A HOLDING