(XVI)
THE SPV MAINTAINS A THREE-PERSON BOARD OF MANAGER, INCLUDING AT
LEAST ONE INDEPENDENT MANAGER, WHO HAS NEVER BEEN, AND SHALL AT NO TIME BE A
MEMBER, MANAGER, DIRECTOR, OFFICER, EMPLOYEE OR ASSOCIATE, OR ANY RELATIVE OF
THE FOREGOING, OF ANY ORIGINATOR OR ANY AFFILIATE THEREOF (OTHER THAN THE SPV
AND ANY OTHER BANKRUPTCY-REMOTE SPECIAL PURPOSE ENTITY FORMED FOR THE SOLE
PURPOSE OF SECURITIZING, OR FACILITATING THE SECURITIZATION OF, FINANCIAL ASSETS
OF ANY ORIGINATOR OR ANY AFFILIATE THEREOF), ALL AS PROVIDED IN ITS CERTIFICATE
OR ARTICLES OF INCORPORATION, AND IS OTHERWISE REASONABLY ACCEPTABLE TO THE
INVESTORS AND THE AGENT; AND
(XVII)
THE OPERATING AGREEMENT OF THE SPV REQUIRES THE AFFIRMATIVE VOTE OF
THE INDEPENDENT MANAGER BEFORE A VOLUNTARY PETITION UNDER SECTION 301 OF THE
BANKRUPTCY CODE MAY BE FILED BY THE SPV, AND THE SPV TO MAINTAIN CORRECT AND
COMPLETE BOOKS AND RECORDS OF ACCOUNT AND MINUTES OF THE MEETINGS AND OTHER
PROCEEDINGS OF ITS MEMBERS AND BOARD OF MANAGERS.
(V)
REPRESENTATIONS AND WARRANTIES IN OTHER RELATED DOCUMENTS.
IN THE
CASE OF THE SPV, EACH OF THE REPRESENTATIONS AND WARRANTIES MADE BY IT CONTAINED
IN THE TRANSACTION DOCUMENTS (OTHER THAN THIS AGREEMENT) IS TRUE, COMPLETE AND
CORRECT IN ALL RESPECTS AND IT HEREBY MAKES EACH SUCH REPRESENTATION AND
WARRANTY TO, AND FOR THE BENEFIT OF, THE AGENT, THE CLASS AGENTS AND THE
INVESTORS AS IF THE SAME WERE SET FORTH IN FULL HEREIN.
(W)
NO SERVICER DEFAULT.
IN THE CASE OF THE SERVICER, NO EVENT HAS
OCCURRED AND IS CONTINUING AND NO CONDITION EXISTS, OR WOULD RESULT FROM A
PURCHASE IN RESPECT OF, OR REINVESTMENT IN RESPECT OF THE ASSET INTEREST, ANY
INVESTMENT OR FROM THE APPLICATION OF THE PROCEEDS THEREFROM, WHICH CONSTITUTES
OR MAY REASONABLY BE EXPECTED TO CONSTITUTE A SERVICER DEFAULT.
SECTION 4.2
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
SERVICER.
The Servicer represents and warrants on the Closing Date and on each Investment
Date and Reinvestment Date to the Agent, the Class Agents and the Investors,
which representation and warranty shall survive the execution and delivery of
this Agreement, that each of the representations and warranties of the Servicer
contained in any Transaction Document is true, complete and correct and the
Servicer hereby makes each such representation and warranty to,
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and for the benefit of, the Agent, the Class Agents and the Investors as if the
same were set forth in full herein.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.1
CONDITIONS PRECEDENT TO CLOSING.
The occurrence of the Closing Date and the effectiveness of the Commitments
hereunder shall be subject to the conditions precedent that (i) the SPV, the
Receivables Seller or the Originators shall have paid in full (A) all amounts
required to be paid by any of them on or prior to the Closing Date pursuant to
the Fee Letters and (B) the fees and expenses described in clause (i) of Section
9.4 and invoiced prior to the Closing Date, and (ii) the Agent shall have
received, for itself and each of the Investors and