Common use of Representations and Warranties by the Borrower Clause in Contracts

Representations and Warranties by the Borrower. Effective as of the Lending Facility Closing Date and each Exchange Note Issuance Date, subject to the related Exchange Note Supplement, the Borrower makes the following representations and warranties: (a) The Borrower has been duly organized and is validly existing as a statutory trust in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire, own and pledge the Collateral. (b) The Borrower has the power and authority to execute and deliver this Agreement and the Basic Documents to which it is a party and to carry out its terms and their terms, respectively; the Borrower has full power and authority to pledge the Collateral to the Collateral Agent hereunder. (c) This Agreement and the Basic Documents to which the Borrower is a party, when duly executed and delivered, shall constitute legal, valid and binding obligations of the Borrower enforceable in accordance with their respective terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a proceeding in equity or at law. (d) The consummation of the transactions contemplated by this Agreement and the Basic Documents to which the Borrower is a party and the fulfillment of the terms of this Agreement and such other Basic Documents shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice, lapse of time or both) a default under the Certificate of Trust or the Titling Trust Agreement, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Borrower is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument, other than this Agreement, or violate any law, order, rule or regulation applicable to the Borrower of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Borrower or any of its properties. (e) There are no proceedings or investigations pending or, to the Borrower’s knowledge, threatened against the Borrower, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Borrower or its properties (i) asserting the invalidity of this Agreement or any of the Basic Documents to which the Borrower is a party, (ii) seeking to prevent the issuance of any Exchange Note or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents to which the Borrower is a party, (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Borrower of its obligations under, or the validity or enforceability of, this Agreement or any of the Basic Documents to which the Borrower is a party, or (iv) seeking to adversely affect the federal income tax or other federal, state or local tax attributes of any Exchange Note. (f) The Borrower is not required to obtain the consent of any other party or any consent, license, approval or authorization, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement which has not already been obtained. (g) This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Collateral in favor of the Collateral Agent, which security interest is prior to all other Liens (other than Permitted Liens) and is enforceable as such against creditors of and purchasers from the Borrower. (h) The Borrower owns and has good and marketable title to the Collateral, free and clear of any Lien (other than a Permitted Lien) of any Person (other than the Collateral Agent and other than as permitted by this Agreement and the other Basic Documents). (i) The Borrower has caused the filing of all financing statements in all appropriate jurisdictions in order to perfect the security interest granted in the Collateral to the Collateral Agent (to the extent that a security interest can be perfected by such filing). The Borrower has not authorized the filing of and is not aware of any financing statements against the Borrower that include a description of collateral covering any part of the Collateral, including the Collateral included in the Designated Pool with respect to such Exchange Note, other than any financing statements relating to the security interest granted to the Collateral Agent hereunder or that has been terminated. The Borrower is not aware of any judgment or tax lien filings against it. (j) All of the Permitted Investments with respect to such Exchange Note have been and will be credited to the related Collection Account. The securities intermediary for each Securities Account has agreed or will agree in an account control agreement to (i) treat all assets credited to the Collection Accounts as “financial assets” within the meaning of the applicable UCC and (ii) comply with all instructions originated by the secured party as set forth in the applicable account control agreement relating to the Collection Accounts without further consent by the Borrower. The Collection Accounts are not in the name of any Person other than one or more of the Borrower, the Collateral Agent or, if debt obligations that are secured by the applicable Exchange Note have been issued, the applicable Administrative Agent. The Borrower has not consented to the securities intermediary of any Collection Account with respect to such Exchange Note complying with entitlement orders of any Person other than the Collateral Agent or, if debt obligations secured by an Exchange Note have been issued, the applicable Administrative Agent.