IN ALL RESPECTS,
BE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO THE PRIOR INDEFEASIBLE PAYMENT
IN FULL OF ALL AMOUNTS DUE UNDER THE CLASS A NOTES.
(B)
THE INDENTURE TRUSTEE, FOR ITSELF AND ON
BEHALF OF THE NOTEHOLDERS, HEREBY AGREES THAT THE INSURER MAY AT ANY TIME DURING
THE CONTINUATION OF ANY PROCEEDING RELATING TO A FINAL ORDER, PROVIDED THAT NO
INSURER DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, DIRECT ALL MATTERS
RELATING TO SUCH FINAL ORDER, INCLUDING, WITHOUT LIMITATION, THE DIRECTION OF
ANY APPEAL OF ANY ORDER RELATING TO SUCH FINAL ORDER AND THE POSTING OF ANY
SURETY, SUPERSEDEAS OR PERFORMANCE BOND PENDING ANY SUCH APPEAL.
IN ADDITION
AND WITHOUT LIMITATION OF THE FOREGOING, THE INSURER SHALL BE SUBROGATED, TO THE
EXTENT OF ANY PAYMENTS MADE UNDER THE POLICY RELATING TO A FINAL
37
ORDER, TO THE RIGHTS OF THE DEPOSITOR, THE SERVICER, THE SELLER, THE TRUST, THE
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:
(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