AND FINANCING RECEIVABLES;
(XIII)
THE BORROWER MAINTAINS AT LEAST ONE INDEPENDENT MANAGER EACH OF
WHOM (A) IS NOT A STOCKHOLDER, DIRECTOR, OFFICER, EMPLOYEE OR ASSOCIATE, OR ANY
RELATIVE OF THE FOREGOING, OF ANY MEMBER OF THE PARENT GROUP (OTHER THAN THE
BORROWER), ALL AS PROVIDED IN ITS LIMITED LIABILITY COMPANY AGREEMENT, (B) HAS
(1) PRIOR EXPERIENCE AS AN INDEPENDENT DIRECTOR FOR AN ENTITY WHOSE
ORGANIZATIONAL DOCUMENTS REQUIRED THE UNANIMOUS CONSENT OF ALL INDEPENDENT
MANAGERS THEREOF BEFORE SUCH CORPORATION COULD CONSENT TO THE INSTITUTION OF
BANKRUPTCY OR INSOLVENCY PROCEEDINGS AGAINST IT OR COULD FILE A PETITION SEEKING
RELIEF UNDER ANY APPLICABLE FEDERAL OR STATE LAW RELATING TO BANKRUPTCY AND
(2) AT LEAST THREE YEARS OF EMPLOYMENT EXPERIENCE WITH ONE OR MORE ENTITIES THAT
PROVIDE, IN THE ORDINARY COURSE OF THEIR RESPECTIVE BUSINESSES, ADVISORY,
MANAGEMENT, INDEPENDENT DIRECTOR SERVICES OR PLACEMENT SERVICES TO ISSUERS OF
SECURITIZATION OR STRUCTURED FINANCE INSTRUMENTS, AGREEMENTS OR SECURITIES, AND
(C) IS OTHERWISE ACCEPTABLE TO THE ADMINISTRATIVE AGENT;
(XIV)
THE LIMITED LIABILITY COMPANY AGREEMENT OF THE BORROWER REQUIRES
THE AFFIRMATIVE VOTE OF EACH INDEPENDENT MANAGER BEFORE A VOLUNTARY PETITION
UNDER SECTION 301 OF THE BANKRUPTCY CODE MAY BE FILED BY THE BORROWER; AND
(XV)
BORROWER SHALL MAINTAIN (1) CORRECT AND COMPLETE BOOKS AND RECORDS
OF ACCOUNT AND (2) MINUTES OF THE MEETINGS AND OTHER PROCEEDINGS OF ITS MEMBERS
AND BOARD OF MANAGERS.
(Q)
DEPOSIT AND DISBURSEMENT ACCOUNTS.
SCHEDULE 4.01(Q) LISTS ALL
BANKS AND OTHER FINANCIAL INSTITUTIONS AT WHICH THE BORROWER MAINTAINS DEPOSIT
OR OTHER BANK ACCOUNTS AS OF THE CLOSING DATE, INCLUDING ANY ACCOUNT, AND SUCH
SCHEDULE CORRECTLY IDENTIFIES THE NAME, ADDRESS AND TELEPHONE NUMBER OF EACH
DEPOSITORY, THE NAME IN WHICH THE ACCOUNT IS HELD, A DESCRIPTION OF THE PURPOSE
OF THE ACCOUNT, AND THE COMPLETE ACCOUNT NUMBER THEREFOR.
EACH ACCOUNT
CONSTITUTES A DEPOSIT ACCOUNT OR A SECURITIES ACCOUNT WITHIN THE MEANING OF THE
APPLICABLE UCC.
THE BORROWER (OR THE SERVICER ON ITS BEHALF) HAS DELIVERED TO
THE ADMINISTRATIVE AGENT A FULLY EXECUTED AGREEMENT PURSUANT TO WHICH THE
BORROWER ACCOUNT BANK
24
(with respect to the Borrower Account), the Concentration Account Bank (in the
case of the Concentration Account) and each Collection Account Bank (with
respect to each Collection Account) has agreed to comply with all instructions
originated by the Administrative Agent directing the disposition of funds in the
Accounts without further consent by the Borrower, the Servicer or any
Originator.
None of the Transaction Parties has access to any of the Accounts.
No Account is in the name of any person other than the Borrower or the
Administrative Agent, and the Borrower has not consented to any Bank following
the instructions of any Person other than the Administrative Agent.
Accordingly, the Administrative Agent has a first priority perfected security
interest in each Account, and all funds on deposit therein.
(R)
TRANSFERRED RECEIVABLES.
(I)
TRANSFERS.
EACH TRANSFERRED RECEIVABLE WAS PURCHASED BY OR
CONTRIBUTED TO THE BORROWER ON THE RELEVANT TRANSFER DATE PURSUANT TO THE SALE
AGREEMENT.
(II)
ELIGIBILITY.
EACH TRANSFERRED RECEIVABLE DESIGNATED AS AN
ELIGIBLE RECEIVABLE IN