SUCH THAT:
IT DOES NOT ENGAGE
IN ANY BUSINESS OR ACTIVITY OF ANY KIND, OR ENTER INTO ANY TRANSACTION OR
INDENTURE, MORTGAGE, INSTRUMENT, AGREEMENT, CONTRACT, LEASE OR OTHER
UNDERTAKING, OTHER THAN THE TRANSACTIONS CONTEMPLATED AND AUTHORIZED BY THIS
AGREEMENT AND THE RECEIVABLES SALE AGREEMENT; AND DOES NOT CREATE, INCUR,
GUARANTEE, ASSUME OR SUFFER TO EXIST ANY INDEBTEDNESS OR OTHER LIABILITIES,
WHETHER DIRECT OR CONTINGENT, OTHER THAN (1) AS A RESULT OF THE ENDORSEMENT OF
NEGOTIABLE INSTRUMENTS FOR DEPOSIT OR COLLECTION OR SIMILAR TRANSACTIONS IN THE
ORDINARY COURSE OF BUSINESS, (2) THE INCURRENCE OF OBLIGATIONS UNDER THIS
AGREEMENT, (3) THE INCURRENCE OF OBLIGATIONS, AS EXPRESSLY CONTEMPLATED IN THE
RECEIVABLES SALE AGREEMENT, TO MAKE PAYMENT TO ORIGINATOR THEREUNDER FOR THE
PURCHASE OF RECEIVABLES FROM ORIGINATOR UNDER THE RECEIVABLES SALE AGREEMENT,
AND (4) THE INCURRENCE OF OPERATING EXPENSES IN THE ORDINARY COURSE OF BUSINESS
OF THE TYPE OTHERWISE CONTEMPLATED BY THIS AGREEMENT;
(M)
MAINTAIN ITS CORPORATE CHARTER IN CONFORMITY WITH THIS AGREEMENT,
SUCH THAT IT DOES NOT AMEND, RESTATE, SUPPLEMENT OR OTHERWISE MODIFY ITS
CERTIFICATE OF INCORPORATION OR BY-LAWS IN ANY RESPECT THAT WOULD IMPAIR ITS
ABILITY TO COMPLY WITH THE TERMS OR PROVISIONS OF ANY OF THE TRANSACTION
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, SECTION 7.1(I) OF THIS AGREEMENT;
(N)
MAINTAIN THE EFFECTIVENESS OF, AND CONTINUE TO PERFORM UNDER THE
RECEIVABLES SALE AGREEMENT AND THE PERFORMANCE UNDERTAKING, SUCH THAT IT DOES
NOT AMEND, RESTATE, SUPPLEMENT, CANCEL, TERMINATE OR OTHERWISE MODIFY THE
RECEIVABLES SALE AGREEMENT OR THE PERFORMANCE UNDERTAKING, OR GIVE ANY CONSENT,
WAIVER, DIRECTIVE OR APPROVAL THEREUNDER OR WAIVE ANY DEFAULT, ACTION, OMISSION
OR BREACH UNDER THE RECEIVABLES SALE AGREEMENT OR THE PERFORMANCE UNDERTAKING OR
OTHERWISE GRANT ANY INDULGENCE THEREUNDER, WITHOUT (IN EACH CASE) THE PRIOR
WRITTEN CONSENT OF THE AGENT;
(O)
MAINTAIN ITS CORPORATE SEPARATENESS SUCH THAT IT DOES NOT MERGE OR
CONSOLIDATE WITH OR INTO, OR CONVEY, TRANSFER, LEASE OR OTHERWISE DISPOSE OF
(WHETHER IN ONE TRANSACTION OR IN A SERIES OF TRANSACTIONS, AND EXCEPT AS
OTHERWISE CONTEMPLATED HEREIN) ALL OR SUBSTANTIALLY ALL OF ITS
20
assets (whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets of, any Person, nor at any time create, have,
acquire, maintain or hold any interest in any Subsidiary.
(P)
MAINTAIN AT ALL TIMES THE REQUIRED CAPITAL AMOUNT (AS DEFINED IN
THE RECEIVABLES SALE AGREEMENT) AND REFRAIN FROM MAKING ANY DIVIDEND,
DISTRIBUTION, REDEMPTION OF CAPITAL STOCK OR PAYMENT OF ANY SUBORDINATED
INDEBTEDNESS WHICH WOULD CAUSE THE REQUIRED CAPITAL AMOUNT TO CEASE TO BE SO
MAINTAINED; AND
(Q)
TAKE SUCH OTHER ACTIONS AS ARE NECESSARY ON ITS PART TO ENSURE THAT
THE FACTS AND ASSUMPTIONS SET FORTH IN THE OPINION ISSUED BY CHAPMAN AND CUTLER
LLP, AS COUNSEL FOR SELLER, IN CONNECTION WITH THE CLOSING OR INITIAL
INCREMENTAL PURCHASE UNDER THIS AGREEMENT AND RELATING TO SUBSTANTIVE
CONSOLIDATION ISSUES, AND IN THE CERTIFICATES ACCOMPANYING SUCH OPINION, REMAIN
TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT ALL TIMES.
(J)
COLLECTIONS.
SUCH SELLER PARTY WILL CAUSE (1) ALL PROCEEDS FROM
ALL LOCK-BOXES TO