HAVE BEEN
COMPROMISED, ADJUSTED, EXTENDED, SATISFIED, SUBORDINATED, RESCINDED, SET-OFF OR
MODIFIED BY THE SELLER, THE OBLIGOR THEREOF OR THE DEALER THEREOF, AND NO SALE
ASSETS ARE SUBJECT TO COMPROMISE, ADJUSTMENT, EXTENSION, SATISFACTION,
SUBORDINATION, RESCISSION, SET-OFF, COUNTERCLAIM, DEFENSE, ABATEMENT,
SUSPENSION, DEFERMENT, DEDUCTION, REDUCTION, TERMINATION OR MODIFICATION,
WHETHER ARISING OUT OF TRANSACTIONS CONCERNING THE SALE ASSETS OR OTHERWISE, BY
THE SELLER, THE OBLIGOR OR THE DEALER THEREOF WITH RESPECT THERETO, EXCEPT FOR
AMENDMENTS, EXTENSIONS OR MODIFICATIONS TO SUCH SALE ASSETS OTHERWISE PERMITTED
UNDER THE TRANSACTION DOCUMENTS AND IN ACCORDANCE WITH THE CREDIT AND COLLECTION
POLICY AND THE SERVICING STANDARD.
22
(Z)
USA PATRIOT ACT. TO THE BEST OF THE
KNOWLEDGE OF EACH OF FAIR, DURHAM AND COCHRAN, NONE OF FAIR, DURHAM OR COCHRAN
NOR ANY AFFILIATE OF ANY OF THEM IS (I) A COUNTRY, TERRITORY OR PERSON NAMED ON
AN OFFICE OF FOREIGN ASSET CONTROL (OFAC) LIST; (II) A PERSON THAT RESIDES OR
HAS A PLACE OF BUSINESS IN A COUNTRY OR TERRITORY NAMED ON SUCH LISTS OR WHICH
IS DESIGNATED AS A "NON-COOPERATIVE JURISDICTION" BY THE FINANCIAL ACTION TASK
FORCE ON MONEY LAUNDERING, OR WHOSE SUBSCRIPTION FUNDS ARE TRANSFERRED FROM OR
THROUGH SUCH A JURISDICTION; (III) A "FOREIGN SHELL BANK" WITHIN THE MEANING OF
THE USA PATRIOT ACT, I.E., A FOREIGN BANK THAT DOES NOT HAVE A PHYSICAL PRESENCE
IN ANY COUNTRY AND THAT IS NOT AFFILIATED WITH A BANK THAT HAS A PHYSICAL
PRESENCE AND AN ACCEPTABLE LEVEL OF REGULATION AND SUPERVISION; OR (IV) A PERSON
THAT RESIDES IN OR IS ORGANIZED UNDER THE LAWS OF A JURISDICTION DESIGNATED BY
THE UNITED STATES SECRETARY OF THE TREASURY UNDER SECTIONS 311 OR 312 OF THE USA
PATRIOT ACT AS WARRANTING SPECIAL MEASURES DUE TO MONEY LAUNDERING CONCERNS.
It is understood and agreed that the representations and warranties provided in
this Section 4.1 shall survive (x) the sale and assignment of the Sale Assets to
the Buyer and (y) any subsequent transfer of the Sale Assets by the Buyer. Upon
discovery by a Responsible Officer of the Seller or the Buyer of a breach of any
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice thereof to the other.
Section 4.2.
Representations and Warranties of the Seller Relating to the Agreement and the
Sale Assets.
The Seller hereby represents and warrants to the Buyer as of the Closing Date as
follows:
(A)
VALID TRANSFER AND SECURITY INTEREST. THIS
AGREEMENT CONSTITUTES A VALID TRANSFER TO THE BUYER OF ALL RIGHT, TITLE AND
INTEREST OF THE SELLER IN, TO AND UNDER ALL OF THE SALE ASSETS, FREE AND CLEAR
OF ANY LIEN OF ANY PERSON CLAIMING THROUGH OR UNDER THE SELLER OR ITS
AFFILIATES, EXCEPT FOR THE LIENS CREATED IN FAVOR OF THE BUYER UNDER THIS
AGREEMENT.
(B)
ELIGIBILITY OF RECEIVABLES. (I) SCHEDULE I
ATTACHED TO THE SALE ASSIGNMENT IS AN ACCURATE AND COMPLETE LISTING OF ALL THE
SALE ASSETS TO BE TRANSFERRED ON THE CLOSING DATE AND THE INFORMATION CONTAINED
THEREIN WITH RESPECT TO THE