PRECEDENT SET FORTH IN SECTION 3.01 OF THE FUNDING AGREEMENT SHALL
HAVE BEEN SATISFIED OR WAIVED IN WRITING AS PROVIDED THEREIN.
The acceptance by any Originator of the Sale Price for any Sold Receivables and
the contribution to Buyer by the Member of any Contributed Receivables on any
Transfer Date shall be deemed to constitute, as of any such Transfer Date, a
representation and warranty by such Originator that the conditions precedent set
forth in this Section 3.01 have been satisfied.
Upon any such acceptance or
contribution, title to the Transferred Receivables sold or contributed on such
Transfer Date shall be vested absolutely in Buyer, whether or not such
conditions were in fact so satisfied.
SECTION 3.02.
TERMINATION OF TRANSFERS.
TRANSFERS OF RECEIVABLES HEREUNDER
SHALL TERMINATE ON THE COMMITMENT TERMINATION DATE.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.01.
REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION PARTIES.
TO
INDUCE BUYER TO PURCHASE THE SOLD RECEIVABLES AND TO ACQUIRE THE CONTRIBUTED
RECEIVABLES, EACH TRANSACTION PARTY, AS APPLICABLE, MAKES THE FOLLOWING
REPRESENTATIONS AND WARRANTIES TO BUYER AS TO ITSELF ONLY AS OF THE CLOSING DATE
AND, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED BELOW, AS OF EACH
TRANSFER DATE, EACH OF WHICH SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT.
(A)
ORGANIZATION, POWERS AND GOOD STANDING.
(I)
ORGANIZATION.
EACH OF THE TRANSACTION
PARTIES IS (I) DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE
LAWS OF ITS JURISDICTION OF ORGANIZATION; (II) IS DULY QUALIFIED TO DO BUSINESS
IN ALL STATES WHERE SUCH QUALIFICATION IS REQUIRED EXCEPT WHERE FAILURE TO BE SO
QUALIFIED WOULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT
WITHIN THE MEANING OF CLAUSES (B) THROUGH (E) OF THE DEFINITION THEREOF;
(III) HAS THE REQUISITE CORPORATE OR COMPANY POWER AND AUTHORITY AND THE LEGAL
RIGHT TO OWN, PLEDGE, MORTGAGE OR OTHERWISE ENCUMBER AND OPERATE ITS PROPERTIES,
TO LEASE THE PROPERTY IT OPERATES UNDER LEASE, AND TO CONDUCT ITS BUSINESS, IN
EACH CASE, AS NOW, HERETOFORE AND PROPOSED TO BE CONDUCTED; (IV) HAS ALL
LICENSES, PERMITS, CONSENTS OR APPROVALS FROM OR BY, AND HAS MADE ALL FILINGS
WITH, AND HAS GIVEN ALL NOTICES TO, ALL GOVERNMENTAL AUTHORITIES HAVING
JURISDICTION, TO THE EXTENT REQUIRED FOR SUCH OWNERSHIP, OPERATION AND CONDUCT,
EXCEPT WHERE THE FAILURE TO DO ANY OF THE FOREGOING COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT WITHIN THE MEANING OF CLAUSES
(B) THROUGH (E) OF THE DEFINITION THEREOF; (V) IS IN COMPLIANCE WITH ITS
ARTICLES OR CERTIFICATE OF INCORPORATION AND BY-LAWS OR OPERATING AGREEMENT, AS
APPLICABLE; AND (VI) SUBJECT TO SPECIFIC REPRESENTATIONS SET FORTH HEREIN
REGARDING ERISA, ENVIRONMENTAL LAWS, TAX LAWS AND OTHER LAWS, IS IN COMPLIANCE
WITH ALL APPLICABLE PROVISIONS OF LAW,
5
EXCEPT WHERE THE FAILURE TO SO COMPLY, INDIVIDUALLY OR IN THE
AGGREGATE, COULD
NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(II)
CORPORATE POWERS.
THE EXECUTION, DELIVERY
AND PERFORMANCE BY EACH TRANSACTION PARTY OF THIS AGREEMENT AND THE OTHER
RELATED DOCUMENTS TO WHICH IT IS