EACH BORROWING BASE CERTIFICATE, MONTHLY REPORT, WEEKLY
REPORT OR DAILY REPORT, AS THE CASE MAY BE, CONSTITUTES AN ELIGIBLE RECEIVABLE
AS OF THE DATE SPECIFIED IN SUCH BORROWING BASE CERTIFICATE, MONTHLY REPORT,
WEEKLY REPORT OR DAILY REPORT, AS APPLICABLE.
(III)
NONAVOIDABILITY OF TRANSFERS.
THE BORROWER SHALL (A) HAVE
RECEIVED EACH CONTRIBUTED RECEIVABLE AS A CONTRIBUTION TO THE CAPITAL OF THE
BORROWER BY THE MEMBER AS A MEMBER OF THE BORROWER AND (B) (1) HAVE PURCHASED
EACH SOLD RECEIVABLE FROM THE APPLICABLE ORIGINATOR FOR CASH CONSIDERATION OR
WITH THE PROCEEDS OF A SUBORDINATED LOAN AND (2) HAVE ACCEPTED ASSIGNMENT OF ANY
ELIGIBLE RECEIVABLES TRANSFERRED PURSUANT TO CLAUSE (B) OF SECTION 4.04 OF THE
SALE AGREEMENT, IN EACH CASE IN AN AMOUNT THAT CONSTITUTES FAIR CONSIDERATION
AND REASONABLY EQUIVALENT VALUE THEREFOR. NO SALE HAS BEEN MADE FOR OR ON
ACCOUNT OF AN ANTECEDENT DEBT (OTHER THAN ANY CONTRACTUAL OBLIGATION TO PURCHASE
RECEIVABLES FROM THE ORIGINATORS UNDER THE SALE AGREEMENT) OWED BY ANY
ORIGINATOR TO THE BORROWER AND NO SUCH SALE IS OR MAY BE AVOIDABLE OR SUBJECT TO
AVOIDANCE UNDER ANY BANKRUPTCY LAWS, RULES OR REGULATIONS.
(S)
ASSIGNMENT OF INTEREST IN RELATED DOCUMENTS.
THE BORROWER'S
INTERESTS IN, TO AND UNDER THE RECEIVABLES SALE AND SERVICING AGREEMENT AND EACH
ORIGINATOR SUPPORT AGREEMENT, IF ANY, HAVE BEEN ASSIGNED BY THE BORROWER TO THE
ADMINISTRATIVE AGENT (FOR THE BENEFIT OF ITSELF AND THE LENDERS) AS SECURITY FOR
THE BORROWER OBLIGATIONS.
(T)
NOTICES TO OBLIGORS.
EACH OBLIGOR OF TRANSFERRED RECEIVABLES HAS
BEEN DIRECTED TO REMIT ALL PAYMENTS WITH RESPECT TO SUCH RECEIVABLES FOR DEPOSIT
IN A LOCKBOX OR COLLECTION ACCOUNT.
(U)
REPRESENTATIONS AND WARRANTIES IN OTHER RELATED DOCUMENTS.
EACH
OF THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER CONTAINED IN THE RELATED
DOCUMENTS (OTHER THAN THIS AGREEMENT) IS TRUE AND CORRECT IN ALL RESPECTS AND
THE BORROWER HEREBY MAKES EACH SUCH
25
representation and warranty to, and for the benefit of, the Lenders and the
Administrative Agent as if the same were set forth in full herein.
(V)
SUPPLEMENTARY REPRESENTATIONS.
EACH OF THE REPRESENTATIONS AND
WARRANTIES OF THE BORROWER SET FORTH ON SCHEDULE 4.01(V) IS TRUE AND CORRECT IN
ALL RESPECTS.
(W)
INTENT. THE BORROWER HAS NOT ENTERED INTO THIS AGREEMENT OR ANY OF
THE OTHER RELATED DOCUMENTS WITH THE INTENT OF HINDERING, DELAYING OR DEFRAUDING
PRESENT OR FUTURE CREDITORS OF ITSELF OR ANY TRANSACTION PARTY.
THE BORROWER
HAS NOT REMOVED OR CONCEALED ANY ASSETS FROM ITS CREDITORS OR PARTICIPATED IN
THE REMOVAL OR CONCEALING OF ASSETS OF ANY TRANSACTION PARTY OR ANY OTHER
PERSON, NOR WILL ANY OF THEM DO SO IN THE FUTURE.
THE TRANSFERS CONTEMPLATED
BY THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS ARE BEING UNDERTAKEN IN
GOOD FAITH BY THE BORROWER FOR BONA FIDE BUSINESS PURPOSES.
ARTICLE V.
GENERAL COVENANTS OF THE BORROWER
SECTION 5.01.
AFFIRMATIVE COVENANTS OF THE BORROWER.
THE BORROWER COVENANTS
AND AGREES THAT FROM AND AFTER THE EFFECTIVE DATE AND UNTIL THE TERMINATION
DATE:
(A)
COMPLIANCE WITH AGREEMENTS AND APPLICABLE LAWS.
THE BORROWER
SHALL (I) PERFORM EACH OF ITS