(W)
REPRESENTATIONS AND WARRANTIES IN OTHER
RELATED DOCUMENTS.
EACH OF THE REPRESENTATIONS AND WARRANTIES OF EACH
TRANSACTION PARTY CONTAINED IN THE RELATED DOCUMENTS (OTHER THAN THIS AGREEMENT)
IS TRUE AND CORRECT AND SUCH TRANSACTION PARTY HEREBY MAKES EACH SUCH
REPRESENTATION AND WARRANTY TO, AND FOR THE BENEFIT OF, THE BUYER AS IF THE SAME
WERE SET FORTH IN FULL HEREIN.
EACH TRANSACTION PARTY CONSENTS TO THE
ASSIGNMENT OF BUYER'S RIGHTS WITH RESPECT TO ALL SUCH REPRESENTATIONS AND
WARRANTIES TO THE ADMINISTRATIVE AGENT AND THE LENDERS (AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS) PURSUANT TO THE FUNDING AGREEMENT AS MORE FULLY
DESCRIBED IN SECTION 6.03 BELOW.
(X)
RECEIVABLES.
WITH RESPECT TO EACH
TRANSFERRED RECEIVABLE ACQUIRED BY THE BUYER HEREUNDER:
(I)
EACH RECEIVABLE INCLUDED IN ANY BORROWER
BASE CERTIFICATE AS AN ELIGIBLE RECEIVABLE, AS OF THE APPLICABLE TRANSFER DATE
THEREFOR, SATISFIED THE CRITERIA FOR AN ELIGIBLE RECEIVABLE ON SUCH TRANSFER
DATE;
(II)
IMMEDIATELY PRIOR TO ITS TRANSFER TO
BUYER, SUCH RECEIVABLE WAS OWNED BY THE ORIGINATOR THEREOF FREE AND CLEAR OF ANY
ADVERSE CLAIM, AND SUCH ORIGINATOR HAD THE FULL RIGHT, POWER AND AUTHORITY TO
SELL, CONTRIBUTE, ASSIGN, TRANSFER AND PLEDGE ITS INTEREST THEREIN AS
CONTEMPLATED UNDER THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS AND,
11
UPON SUCH TRANSFER, BUYER WILL ACQUIRE VALID AND PROPERLY PERFECTED TITLE TO AND
THE SOLE RECORD AND BENEFICIAL OWNERSHIP INTEREST IN SUCH RECEIVABLE, FREE AND
CLEAR OF ANY ADVERSE CLAIM AND, FOLLOWING SUCH TRANSFER, SUCH RECEIVABLE WILL
NOT BE SUBJECT TO ANY ADVERSE CLAIM AS A RESULT OF ANY ACTION OR INACTION ON THE
PART OF SUCH ORIGINATOR;
(III)
THE TRANSFER OF EACH SUCH RECEIVABLE
PURSUANT TO THIS AGREEMENT AND THE RECEIVABLES ASSIGNMENT EXECUTED BY THE
ORIGINATOR THEREOF CONSTITUTES, AS APPLICABLE, A VALID SALE, CONTRIBUTION,
TRANSFER, ASSIGNMENT, SETOVER AND CONVEYANCE TO BUYER OF ALL RIGHT, TITLE AND
INTEREST OF SUCH ORIGINATOR IN AND TO SUCH RECEIVABLE; AND
(IV)
SUCH TRANSFERRED RECEIVABLE WAS ORIGINATED IN
COMPLIANCE WITH THE CREDIT AND COLLECTION POLICIES.
(Y)
FAIR VALUE.
WITH RESPECT TO EACH
TRANSFERRED RECEIVABLE ACQUIRED BY THE BUYER HEREUNDER, (I) THE CONSIDERATION
(TAKING INTO ACCOUNT ANY INCREASE IN THE OUTSTANDING BALANCE OF THE SUBORDINATED
NOTE) RECEIVED FROM THE BUYER IN RESPECT OF SUCH TRANSFERRED RECEIVABLE
REPRESENTS ADEQUATE CONSIDERATION AND FAIR AND REASONABLY EQUIVALENT VALUE FOR
SUCH TRANSFERRED RECEIVABLE AS OF THE APPLICABLE TRANSFER DATE AND (II) SUCH
CONSIDERATION IS NOT LESS THAN THE FAIR MARKET VALUE OF SUCH TRANSFERRED
RECEIVABLES, IN EACH CASE, AS OF THE APPLICABLE TRANSFER DATE.
(Z)
SUPPLEMENTARY REPRESENTATIONS.
EACH OF
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER SET FORTH ON SCHEDULE 4.01(Z)
IS TRUE AND CORRECT IN ALL RESPECTS.
(AA)
ACCESS TO THE ACCOUNTS.
NONE OF THE TRANSACTION
PARTIES HAS ACCESS TO ANY OF THE ACCOUNTS.
(BB)
INTENT.
NONE OF THE TRANSACTION PARTIES HAS
ENTERED INTO THIS AGREEMENT OR ANY OF THE OTHER RELATED DOCUMENTS WITH THE
INTENT OF HINDERING, DELAYING OR DEFRAUDING PRESENT OR FUTURE CREDITORS OF ANY
TRANSACTION PARTY.
NONE OF THE TRANSACTION PARTIES HAS REMOVED OR CONCEALED ANY
ASSETS FROM ITS CREDITORS OR