RECEIVABLES TRANSFER AGREEMENT dated as of September 29, 2017 among BASIC ENERGY SERVICES, L.P., as Initial Originator, and BASIC ENERGY RECEIVABLES, LLC, as Transferee

Exhibit 10.2

EXECUTION VERSION

RECEIVABLES TRANSFER AGREEMENT
dated as of

September 29, 2017

among

BASIC ENERGY SERVICES, L.P.,
as Initial Originator,

and

BASIC ENERGY RECEIVABLES, LLC,
as Transferee

TABLE OF CONTENTS

Page

ARTICLE I
DEFINITIONS

Section 1.01	Defined Terms	1
Section 1.02	Terms Generally	4
Section 1.03	Accounting Terms; GAAP; UCC	4

ARTICLE II
AMOUNTS AND TERMS OF THE TRANSFER

Section 2.01	Initial Contribution of Receivables	5
Section 2.02	Subsequent Sales or Contributions of Receivables	5
Section 2.03	Delivery of Transfer Consideration	6
Section 2.04	Transfer Consideration Indemnification	7
Section 2.05	Payments and Computations, Etc	8
Section 2.06	Transfer of Records	8
Section 2.07	Characterization	9

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ARTICLE III
REPRESENTATIONS AND WARRANTIES

Section 3.01	Organizational Status and Existence; Organizational Power and Authority	10
Section 3.02	UCC Matters	10
Section 3.03	Authorization; Enforceability	10
Section 3.04	Governmental Approvals; No Conflicts	10
Section 3.05	No Material Misstatements	11
Section 3.06	No Material Adverse Effect	11
Section 3.07	Litigation and Investigations	11
Section 3.08	Compliance with Laws	12
Section 3.09	Taxes	12
Section 3.10	ERISA	12
Section 3.11	Margin Regulations	12
Section 3.12	Credit and Collection Policy	12
Section 3.13	Investment Company Status	12
Section 3.14	Solvency	12
Section 3.15	Title, Perfection and Priority	13
Section 3.16	Information Regarding Collection Accounts	13
Section 3.17	Eligible Receivables	13
Section 3.18	Reliance on Separate Legal Identity	13
Section 3.19	Enforceability of Contracts	13
Section 3.20	Payments to Originator	14
Section 3.21	Nature of Transferred Receivables	14
Section 3.22	No Brokers	14
Section 3.23	Instructions to Obligors	14
Section 3.24	Compliance with Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions	14

ARTICLE IV
CONDITIONS OF SALE OR CONTRIBUTION

Section 4.01	Conditions Precedent to Initial Contribution	15
Section 4.02	Conditions Precedent to Subsequent Contributions or Sales	16

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ARTICLE V
AFFIRMATIVE COVENANTS

Section 5.01	Certain Information	17
Section 5.02	Notices of Material Events	17
Section 5.03	Compliance with Agreements and Laws	18
Section 5.04	Existence; Conduct of Business	18
Section 5.05	Maintenance of Assets and Properties	19
Section 5.06	Payment of Obligations	19
Section 5.07	Title	19
Section 5.08	Originator to Maintain Perfection and Priority	19
Section 5.09	Deposit of Collections	19
Section 5.10	Use of Proceeds	20
Section 5.11	Books and Records	20
Section 5.12	Access to Accountants	20
Section 5.13	Audits	20
Section 5.14	Compliance with Contracts and Credit and Collection Policy	21
Section 5.15	Separateness of Transferee	21
Section 5.16	Further Assurances	21

ARTICLE VI
NEGATIVE COVENANTS

Section 6.01	Change in Name, Jurisdiction of Organization	22
Section 6.02	Modifications of Transferred Receivables, Credit and Collection Policies and Instructions to Obligors	22
Section 6.03	No Commingling	22
Section 6.04	Sales, Liens	22
Section 6.05	Insolvency Proceedings	23
Section 6.06	Sale Characterization	23

ARTICLE VII
TERMINATION EVENTS

Section 7.01	Termination Events	23
Section 7.02	Remedies	25

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ARTICLE VIII
INDEMNIFICATION

Section 8.01	Indemnities by Originators	26
Section 8.02	Other Costs and Expenses	28

ARTICLE IX
MISCELLANEOUS

Section 9.01	Waivers and Amendments	28
Section 9.02	Notices	29
Section 9.03	Protection of Ownership Interests of Transferee	29
Section 9.04	Confidentiality	30
Section 9.05	Bankruptcy Petition	31
Section 9.06	Limitation of Liability	31
Section 9.07	CHOICE OF LAW	31
Section 9.08	CONSENT TO JURISDICTION	31
Section 9.09	WAIVER OF JURY TRIAL	32
Section 9.10	Integration; Binding Effect; Survival of Terms	32
Section 9.11	Counterparts; Severability; Section References	33
Section 9.12	Addition of Originators	33
Section 9.13	Termination of Originators	34
Section 9.14	Releases	35

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Exhibits

Exhibit I Form of Additional Originator Supplement

Exhibit II Jurisdiction of Organization; Organizational Identification Number; Principal Place of Business; Other Places of Business; Federal Employer Identification Number; Other Names; Other Security Interests Granted

Exhibit III Lockboxes; Collection Accounts; Collection Account Banks

Exhibit IV Copy of Credit and Collection Policy

Exhibit V Form of Transfer Report

Exhibit VI Notices

Exhibit VII Form of Subordinated Note

Schedules

Schedule 2.01 Initial Contributed Receivables

Schedule 3.09 ERISA

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RECEIVABLES TRANSFER AGREEMENT

RECEIVABLES TRANSFER AGREEMENT, dated as of September 29, 2017 (“Agreement”), among BASIC ENERGY SERVICES, L.P. (the “Initial Originator” and together with any other Wholly Owned Subsidiary of Parent that becomes an Originator pursuant to the terms of this Agreement, each an “Originator” and collectively, the “Originators”), and BASIC ENERGY RECEIVABLES, LLC (“Transferee”).

PRELIMINARY STATEMENTS

The Initial Originator now owns, and from time to time hereafter each Originator will own, Receivables. Such Originator wishes to sell or contribute, transfer and assign to Transferee, and Transferee wishes to purchase or accept, absolutely and irrevocably, from such Originator, all of such Originator’s right, title and interest in and to Receivables, together with the Related Security and Collections with respect thereto.

Each Originator and Transferee intend the transactions contemplated hereby to be “true sales” or “true capital contributions”, as the case may be, of the Receivables from such Originator to Transferee, providing Transferee with the full benefits of ownership of such Receivables, and the Originators and Transferee do not intend these transactions to be, or for any purpose to be characterized as, loans from Transferee to any Originator.

Following the sale or contribution, transfer and assignment of Transferred Receivables from the Originators, Transferee will grant a security interest in the Transferred Receivables, the associated Related Security and Collections to the Collateral Agent under that certain Credit and Security Agreement, dated as of the date hereof (as the same may from time to time hereafter be amended, supplemented, restated or otherwise modified, the “Credit Agreement”) among Transferee, Basic Energy Services, L.P., as initial Servicer, Basic Energy Services, Inc., as the Performance Guarantor, the Lenders party thereto, and UBS AG, Stamford Branch, as Administrative Agent and Collateral Agent.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I DEFINITIONS

Section 1.01    Defined Terms. As used in this Agreement, the following terms have the meanings specified below. If a capitalized term is used in this Agreement, or any Exhibit or Schedule, and is not otherwise defined herein or therein or in this Article I, such term shall have the meaning assigned thereto in the Credit Agreement.

“Additional Originator Supplement” means an agreement substantially in the form of Exhibit I pursuant to which a Wholly Owned Subsidiary of Parent that has been incorporated or

organized under the laws of the United States of America, any State thereof or the District of Columbia becomes an Originator party hereto.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Authorized Officer” means, with respect to any Person, its president, chief executive officer, any vice president, corporate controller, treasurer or chief financial officer.

“Calculation Period” means each calendar month or portion thereof which elapses during the term of this Agreement. The first Calculation Period shall commence on the date of the Initial Contribution and the final Calculation Period shall terminate on the Termination Date.

“Credit Agreement” has the meaning as set forth in the Preliminary Statements to this Agreement.

“Default Fee” means a per annum rate of interest equal to the sum of (a) the Alternate Base Rate plus (b) two (2) percent.

“Discount Factor” means, in connection with a sale for cash (or for delivery of a Subordinated Note) of Receivables to Transferee, a percentage calculated by Transferee, and acceptable to the respective Originator, to provide Transferee with a reasonable return on its investment in the Transferred Receivables of such Originator after taking account of (a) the time value of money based upon the anticipated dates of collection of the Transferred Receivables and the cost to Transferee of financing its investment in the Transferred Receivables during such period and (b) the risk of nonpayment by the Obligors. Each Originator and Transferee may agree from time to time to change the Discount Factor based on changes in one or more of the items affecting the calculation thereof; provided that any change to the Discount Factor shall take effect as of the commencement of a Calculation Period, shall apply only prospectively and shall not affect the Transfer Consideration payment made prior to the Calculation Period during which such Originator and Transferee agree to make such change.

“First-Step Transactions” means the execution, delivery and performance by each Originator of this Agreement and the consummation of the transactions contemplated hereby.

“Immediate Originator Termination Notice” has the meaning set forth in Section 9.13.

“Initial Contributed Receivables” has the meaning set forth in Section 2.01.

“Initial Contribution” means, with respect to the Initial Originator, the contribution of the Initial Contributed Receivables.

“Initial Cutoff Date” has the meaning set forth in Section 2.01.

“Initial Originator” has the meaning set forth in the preamble to this Agreement.

“Orderly Originator Termination Notice” has the meaning set forth in Section 9.13.

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“Organizational Documents” means, for any Person, the documents for its formation and organization, which, for example, (a) for a corporation are its corporate charter and by-laws, (b) for a partnership are its certificate of partnership (if applicable) and partnership agreement, (c) for a limited liability company are its certificate of formation or organization and its operating agreement, regulations or the like and (d) for a trust is the trust agreement, declaration of trust, indenture or by-laws under which it is created.

“Originator” and “Originators” has the meaning set forth in the preamble to this Agreement.

“Originator Termination Notice” has the meaning set forth in Section 9.13.

“Originator Termination Effective Date” has the meaning set forth in Section 9.13.

“Outstanding Principal Balance” of any Transferred Receivable at any time means the outstanding principal balance then due under such Transferred Receivable.

“Settlement Date” means any Business Day on which a Receivable is originated by an Originator.

“SPV Holdco” means BER Holdco, LLC, a Delaware limited liability company and the direct owner of all of the outstanding equity interests in Transferee.

“Subordinated Note” means any one or more subordinated promissory notes, issued by Transferee to an Originator, evidencing indebtedness incurred by Transferee to such Originator representing Transfer Consideration for the acquisition of Transferred Receivables other than by payment of cash or increase in the value of the respective Originator’s equity interest, in substantially the form of Exhibit VII, with variable information and alternative terms and provisions completed as contemplated in such form.

“Termination Date” means the earliest to occur of (a) the Maturity Date, (b) the date the Termination Date is declared to have occurred or automatically occurred pursuant to Section 7.02 or (c) the Business Day designated on at least ten days’ prior written notice from the Originators to Transferee and the Collateral Agent.

“Termination Events” has the meaning set forth in Section 7.01.

“Transfer Consideration” means, with respect to each transfer of Receivables, the aggregate consideration to be delivered by Transferee to the Originator of such Receivables in accordance with Section 2.03 for the Transferred Receivables, Collections and Related Security being transferred to Transferee, which shall be the fair market value of such transferred property as of the corresponding Transfer Date as agreed by Transferee and such Originator, which the parties hereto agree shall consist of (x) in the case of a contribution of Receivables, an increase in the value of the contributing Originator’s equity interest in SPV Holdco and a corresponding increase in the value of SPV Holdco’s equity interest in Transferee each equal on the related Transfer Date to the book value of such Transferred Receivables on such date as reflected in the financial records of

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such Originator, net of any write-downs or other reductions to the Outstanding Principal Balance thereof taken on or before such date in accordance with the Credit and Collection Policy and (y) in the case of a sale of Receivables, payment (or incurrence of indebtedness under a Subordinated Note, as the case may be) in an amount equal to the aggregate Outstanding Principal Balance of such Transferred Receivables multiplied by an amount equal to (i) one minus (ii) the Discount Factor, either (A) in cash or (B) by delivery of a Subordinated Note in a principal amount equal to the portion of the Transfer Consideration due to such Originator for such sale of Transferred Receivables as Transferee elects to pay through issuance of such Subordinated Note, or a combination of cash and one or more Subordinated Notes, subject to the limitation set forth in Section 2.03(d).

“Transfer Consideration Indemnification Payment” means any payment by an Originator to Transferee pursuant to Section 2.04.

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“Transfer Date” means the date on which any Receivables are transferred to Transferee. Unless otherwise agreed, the Transfer Date of Receivables transferred after the Initial Contribution shall be the respective Settlement Date.

“Transfer Report” has the meaning set forth in Section 2.02(b).

“Transferee” has the meaning set forth in the preamble to this Agreement.

“Unmatured Termination Event” means an event which, with the passage of time or the giving of notice, or both, would constitute a Termination Event.

Section 1.02    Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein (including any Loan Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (unless otherwise expressly provided in any Loan Document and subject to any restrictions on such amendments, supplements or modifications set forth herein or therein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

Section 1.03    Accounting Terms; GAAP; UCC. All accounting terms not specifically defined herein shall be construed in accordance with GAAP. Unless otherwise specified, all terms used in Article 9 of the UCC in the State of New York, and not specifically defined herein or in the Credit Agreement, are used herein as defined in such Article 9.

ARTICLE II AMOUNTS AND TERMS OF THE TRANSFER

Section 2.01    Initial Contribution of Receivables. On the date hereof, the Initial Originator does hereby contribute, assign, transfer, set over and otherwise convey, and deliver, to Transferee, without recourse (except to the extent expressly provided in this Agreement), and Transferee does hereby accept from such Originator (and deliver to such Originator the Transfer Consideration in respect thereof in accordance with Section 2.03), all Receivables originated by the Initial Originator and existing as of the close of business at the principal place of business of the Initial Originator on September 29, 2017 (the “Initial Cutoff Date”) having an aggregate Outstanding Principal Balance in the amounts set forth on Schedule 2.01 (the “Initial Contributed

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Receivables”), for the Transfer Consideration set forth on such Schedule, together with all Related Security relating thereto and all Collections thereof.

Section 2.02    Subsequent Sales or Contributions of Receivables. (a) Effective on the date hereof, in consideration for delivery of the Transfer Consideration in accordance with Section 2.03 and upon the terms and subject to the conditions set forth herein, each Originator does hereby agree to sell or contribute, as the case may be, assign, transfer, set over and otherwise convey, and deliver, to Transferee, without recourse (except to the extent expressly provided in this Agreement), and Transferee does hereby agree to purchase or accept, as the case may be, from each Originator, on the applicable Transfer Date, all of such Originator’s right, title and interest in and to all Receivables arising after the Initial Cutoff Date through and including the earlier of (i) the occurrence of the Originator Termination Effective Date with respect to such Originator and (ii) the Termination Date, together, in each case, with all Related Security relating thereto and all Collections thereof. In accordance with the preceding sentence, on the applicable Transfer Date Transferee shall acquire or accept, as the case may be, all of each Originator’s right, title and interest in and to all Receivables, together with all Related Security relating thereto and all Collections thereof, originated by such Originator and not previously transferred to the Transferee, through and including the earlier of (i) the occurrence of the Originator Termination Effective Date with respect to such Originator and (ii) the Termination Date. Transferee shall deliver the Transfer Consideration for the Receivables, Related Security and Collections sold or contributed hereunder by an Originator in accordance with Section 2.03. Unless otherwise agreed by Transferee and the respective Originator, each transfer of Receivables hereunder shall be effected by contribution rather than by (i) a cash sale and/or (ii) issuance of a Subordinated Note.

(b)    On the date of delivery of each Borrowing Base Report, as applicable, each Originator shall (or shall require the Servicer to) deliver to Transferee a report containing substantially the same information as the form of report set forth in Exhibit V (each such report being herein called a “Transfer Report”) with respect to the Transferred Receivables sold or contributed by each Originator to Transferee during the applicable Calculation Period (or portion thereof for which such information is available if delivered in connection with a weekly Borrowing Base Report during an Enhanced Reporting Event). In addition to, and not in limitation of, the foregoing, in connection with any sale or contribution hereunder of Transferred Receivables, Related Security and Collections by an Originator, Transferee may request that each Originator deliver, and each Originator shall deliver upon such request, such documents evidencing such Transferred Receivables and Related Security as Transferee may reasonably request (provided that no such delivery will be required if it would cause Originator to breach any confidentiality provision in any agreement with a third party and, if an Unmatured Termination Event or Termination Event has occurred and is continuing, Originator could not obtain such third party’s waiver of such confidentiality provision or consent to disclosure using its commercially reasonable efforts).

(c)    It is the intention of the parties hereto that any sale or contribution of

Transferred Receivables, Related Security and Collections made hereunder shall constitute a sale or contribution, as the case may be, which is absolute and irrevocable and provides Transferee with

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the full benefits of ownership of the Transferred Receivables, Related Security and Collections. Except for any Transfer Consideration Indemnification Payment that may become due pursuant to Section 2.04, the sale or contribution of Transferred Receivables, Related Security and Collections hereunder is made without recourse to any Originator; provided, however, that (i) each Originator shall be liable to Transferee for all representations, warranties, covenants and indemnities made by such Originator pursuant to the terms of this Agreement and the other Loan Documents to which such Originator is a party, and (ii) such sale or contribution does not constitute and is not intended to result in an assumption by Transferee or any assignee thereof of any obligation of any Originator or any other Person arising in connection with the Transferred Receivables originated by such Originator, the related Contracts and/or other Related Security or any other obligations of any Originator. In view of the intention of the parties hereto that a sale or contribution of Transferred Receivables, Related Security and Collections hereunder shall constitute an absolute and irrevocable transfer of such Transferred Receivables, Related Security and Collections rather than loans secured thereby, each Originator agrees that (i) it will, on or promptly following the date hereof, prepare and display prominently a physical legend reasonably acceptable to Transferee and to the Collateral Agent (as Transferee’s assignee) in proximity to its relevant books and records and on the user login screens used by such Originator to access its computer accounting files and general ledgers, which legend shall evidence that the Transferred Receivables have been transferred to Transferee as provided in this Agreement and (ii) in accordance with Section 5.11, from and after the date hereof a review of its financial statements will disclose that the Transferred Receivables have been absolutely transferred to Transferee.

(d)    Upon the terms and subject to the conditions set forth in Section 9.13, any Originator may request to terminate the transfer of Receivables owned by such Originator to Transferee by delivery of an Originator Termination Notice. Subject to the satisfaction of the conditions set forth in Section 9.13 with respect to an Orderly Originator Termination Notice, any Originator Termination Notice shall be effective as of the applicable Originator Termination Effective Date. Unless the Termination Date has occurred, each Originator (other than any Originator that has been terminated) shall continue to transfer Receivables owned by such Originator pursuant to this Agreement following the termination of any other Originator.

Section 2.03    Delivery of Transfer Consideration. (a) The Transfer Consideration for each Transferred Receivable and all Related Security relating thereto and all Collections thereof (i) transferred by contribution to Transferee, shall be delivered to such Originator in the manner provided in the following paragraph (b), (ii) transferred by cash sale to Transferee, shall be paid in immediately available funds, from Collections on Transferred Receivables or the proceeds of loans under the Credit Agreement, on the agreed payment date applicable to the Transfer Date with respect to such cash sale, to the applicable Originator or (iii) transferred in exchange for a Subordinated Note, shall be a Subordinated Note completed and issued by the Transferee in a principal amount equal to the portion (as determined by Transferee) of the Transfer Consideration to be paid on such Transfer Date for Transferred Receivables that is not to be paid in cash or by an increase in the related Originator’s capital account.

(b)    On each Transfer Date with respect to a transfer by contribution, the Transfer Consideration therefor shall be delivered, concurrently with Transferee’s acceptance of such

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property as a capital contribution by the applicable Originator to its capital account in SPV Holdco which shall in all instances be followed by an immediate and automatic corresponding capital contribution by SPV Holdco to Transferee, by crediting such contribution to such Originator’s capital account in full on the date each such Transferred Receivable came into existence (except in the case of the Initial Receivables, as to which the Transfer Consideration shall be credited as of the date hereof). Such contribution shall be reflected on Transferee’s books and records as a capital contribution by SPV Holdco, in accordance with the terms of the limited liability company agreement of Transferee and on SPV Holdco’s books and records as a capital contribution by the applicable Originator to SPV Holdco, in accordance with the terms of the limited liability company agreement of SPV Holdco.

(c)    From and after the Termination Date, (i) no Originator shall be obligated to (but may, at its option, subject to subclause (ii)) sell or contribute Receivables to Transferee pursuant to Section 2.02 and (ii) Transferee shall not be obligated to (but may, at its option) acquire or accept Receivables proposed to be sold or contributed to Transferee by an Originator.

(d)    Anything herein to the contrary notwithstanding, at no time shall the aggregate unpaid principal amount of all Subordinated Notes outstanding exceed ten percent (10%) of the aggregate outstanding principal amount of the Transferred Receivables as of the most recent Calculation Date, and Transferee shall either repay such portion of the outstanding principal amount of all Subordinated Notes, on a pro rata basis, as is necessary to eliminate any such excess, or accept Transferred Receivables only by contribution and/or cash sale hereunder until such excess is eliminated.

Section 2.04    Transfer Consideration Indemnification. In the event that:

(a)    the Outstanding Principal Balance of any Transferred Receivable is:

(i)    reduced or canceled as a result of any defective or rejected goods or services, any failure of the applicable Originator or any other Person (other than the applicable Obligor) to complete the performance of its obligations under the related Contract with respect to such Transferred Receivable, any discount or any other adjustment by the applicable Originator or any governmental or regulatory action (other than a discharge in bankruptcy of the related Obligor), or

(ii)    reduced or canceled as a result of a defense, deduction, setoff or dispute in respect of any claim by the Obligor thereof (whether such claim arises out of the same or a related transaction or an unrelated transaction), or

(iii)    reduced or canceled on account of the obligation of any Originator or any Affiliate thereof to pay to the related Obligor any rebate or refund, or

(iv)    less than the amount included in calculating the Borrowing Base for purposes of any Borrowing Base Report for any reason other than (x) the receipt of a payment of principal of such Transferred Receivable in cash or (y) the write-off as uncollectible of all

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or any portion of the Outstanding Principal Balance of such Transferred Receivable in accordance with the applicable Originator’s Credit and Collection Policy, or

(b)    any of the representations and warranties set forth in Section 3.17, Section 3.19 or Section 3.21 is not true when made or deemed made with respect to any Transferred Receivable,

then, in such event, the applicable Originator shall pay to Transferee, in cash, monthly in arrears, on the last Business Day of each calendar month, an amount equal to, in the case of clause (a) above, the amount of any such reduction or cancellation and any reduction or deficiency in the Borrowing Base resulting from, arising out of or relating to any of the circumstances described in clause (a) and, in the case of clause (b) above, the Outstanding Principal Balance of such Transferred Receivable; provided that no payment shall be due with respect to (i) a Transferred Receivable as a result of the representation and warranty set forth in Section 3.17 with respect thereto not being true as of the related Transfer Date if such representation and warranty was true as of the Calculation Date for the calendar month in which such Transfer Date occurred or (ii) any reduction or cancellation of the Outstanding Principal Balance of any Transferred Receivable or any reduction or deficiency in the Borrowing Base which is due to uncollectibility of such Transferred Receivable on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor or any other failure or inability (not due to actions of any Originator) on the part of the related Obligor to pay the amount of such Transferred Receivable.

Section 2.05    Payments and Computations, Etc. All cash amounts to be paid or deposited by Transferee hereunder shall be paid or deposited in accordance with the terms hereof on the day when due in immediately available funds to the account of the related Originator designated from time to time by such Originator or as otherwise directed by such Originator. In the event that any cash payment owed by any Person hereunder becomes due on a day that is not a Business Day, then such payment shall be made on the next succeeding Business Day. If any Person fails to pay or deliver any cash or other amount hereunder when due, such Person agrees to pay, on demand, the Default Fee in respect thereof until paid in full; provided, however, that such Default Fee shall not at any time exceed the maximum rate permitted by applicable law. All computations of interest payable hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed.

Section 2.06    Transfer of Records. (a) In connection with the transfer of Transferred Receivables hereunder, each Originator hereby sells, transfers, assigns and otherwise conveys, and delivers, to Transferee all of such Originator’s right and title to and interest in the Records relating to all Transferred Receivables sold or contributed by it hereunder, without the need for any further documentation in connection with such sale, assignment, transfer or other conveyance (it being understood and agreed that any Records that are not assignable (whether by express restriction not rendered ineffective by the UCC or by virtue of confidentiality provisions) according to their terms are excluded from such sale, transfer, assignment or conveyance; provided, that upon reasonable request of Transferee (or its assigns), the applicable Originator will use its commercially reasonable efforts to obtain consent to the assignment from the relevant counterparty). In connection with such transfer, each Originator hereby grants to each of Transferee, the Collateral Agent (so long as any

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Obligations remain outstanding) and the Servicer an irrevocable, non-exclusive license to use, without royalty or payment of any kind, all software used by such Originator to account for the Transferred Receivables originated by such Originator, to the extent necessary to administer the Transferred Receivables originated by such Originator, whether such software is owned by such Originator or is owned by others and used by such Originator under license agreements with respect thereto; provided that should the consent of any licensor of such software be required for the grant of the license described herein, to be effective, the applicable Originator hereby agrees that upon the request of Transferee, the Collateral Agent (so long as any Obligations remain outstanding) or the Servicer, such Originator will use its commercially reasonable efforts to obtain the consent of such third-party licensor. The license granted hereby shall be irrevocable until the payment in full of the Obligations and termination of all Commitments under the Credit Agreement, and shall terminate on the date this Agreement terminates in accordance with its terms.

(b)    Each Originator (i) shall take such action requested by Transferee and/or the Collateral Agent (as Transferee’s assignee), from time to time hereafter, that may be reasonably necessary or appropriate to ensure that Transferee and its assigns under the Credit Agreement have an enforceable ownership interest in the Records transferred to Transferee under Section 2.06(a) by such Originator relating to the Transferred Receivables purchased from such Originator hereunder and (ii) shall use its commercially reasonable efforts to ensure that Transferee, the Collateral Agent and the Servicer each has an enforceable right (whether by license or sublicense, subject to obtaining any required licensor consent requested under Section 2.06(a), or otherwise), until the payment in full of all the Obligations and termination of all Commitments under the Credit Agreement, to use all of the computer software used by such Originator to account for the Transferred Receivables and/or to recreate such Records.

Section 2.07    Characterization. If, notwithstanding the intention of the parties expressed in Section 2.02(c), any sale or contribution by any Originator to Transferee of Transferred Receivables, Related Security or Collections hereunder shall be characterized as a secured loan and not a sale or contribution or such sale or contribution shall for any reason be ineffective or unenforceable, then this Agreement shall be deemed to constitute a security agreement under the UCC and any other Requirement of Law. For this purpose and without being in derogation of the parties’ intention that the sale or contribution of Transferred Receivables, Related Security and Collections hereunder shall constitute a true sale or true contribution thereof, each Originator hereby grants to Transferee a security interest in all of such Originator’s right, title and interest, whether now owned or hereafter acquired, in, to and under all Transferred Receivables originated by such Originator and all Related Security relating thereto and all Collections thereof now existing and hereafter arising, each Lockbox and Collection Account, all other rights and payments relating to such Transferred Receivables and all proceeds of the foregoing, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the Transfer Consideration of such Transferred Receivables together with all other obligations of such Originator hereunder, which security interest shall be prior to all other Liens thereon. Transferee and its assigns shall have, in addition to the rights and remedies which they may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other applicable law, which rights and remedies shall be cumulative.

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ARTICLE III REPRESENTATIONS AND WARRANTIES

Each Originator, with respect to itself, hereby represents and warrants to Transferee on the date hereof and on each Transfer Date:

Section 3.01    Organizational Status and Existence; Organizational Power and Authority. Such Originator (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted, (c) is qualified to do business, and is in good standing, in each jurisdiction where such qualification is required, except where the failure to qualify or be in good standing would not reasonably be expected to have a Material Adverse Effect and (d) has the power and authority to execute, deliver and perform its obligations under this Agreement and each other agreement or instrument contemplated thereby to which it is or will be a party.

Section 3.02    UCC Matters. The state of organization of such Originator, the organizational number issued to it by its state of organization and its Federal employer identification number are set forth in Exhibit II. Such Originator’s current mailing address and the current location of its place of business (if it has only one) or its current chief executive office (if it has more than one place of business), are disclosed on Exhibit II; each Originator has no other principal places of business except those set forth in Exhibit II. Such Originator’s name in which it has executed this Agreement is the exact name as it appears in its organizational documents as filed with its jurisdiction of organization. Except as set forth on Exhibit II, such Originator has not, during the past five years, been known by or used any other corporate or fictitious name, or been a party to any merger or consolidation, or been a party to any acquisition. Except as set forth on Exhibit II, no financing statement or security agreement describing all or any portion of the Transferred Receivables originated by such Originator, Related Security relating thereto or Collections thereof which has not lapsed or been terminated or under which the related security interest has not been released as to such Transferred Receivables, Related Security relating thereto and Collections thereof, naming such Originator as debtor has been filed or is of record in any jurisdiction. Originators may update such Exhibit from time to time subject to compliance with Section 5.08 hereof.

Section 3.03    Authorization; Enforceability. The consummation of the First-Step Transactions are within such Originator’s organizational powers and have been duly authorized by all necessary organizational actions. This Agreement has been duly executed and delivered by such Originator and constitutes a legal, valid and binding obligation of such Originator, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.04    Governmental Approvals; No Conflicts. The execution, delivery and performance of this Agreement by each Originator (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) for filings necessary to perfect Liens created pursuant to the Loan Documents and (iii) such consents or approvals the failure of which

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to be obtained or made could not reasonably be expected to have a Material Adverse Effect, (b) will not violate any Requirement of Law applicable to such Originator, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon it or its assets (other than a violation of or conflict with an unenforceable transfer restriction), or give rise to a right thereunder to require any payment to be made by such Originator (other than, as applicable, expenses of obtaining releases with respect to Liens on Transferred Receivables that are to be released concurrently with their transfer to the Transferee) and (d) will not result in the creation or imposition of any Lien on any assets of such Originator, except Liens created pursuant to the Loan Documents; except with respect to clauses (b) and (c) above, for any such violation or default that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 3.05    No Material Misstatements. (a) Any written information, report, financial statement, exhibit or schedule (other than projections, estimates or information of a general economic nature or general industry nature) prepared by or on behalf of any Originator, the Parent and its Subsidiaries or any of their representatives and made available by any Originator or its representatives to the Transferee, Agents or any Lender in connection with the Transactions or the other transactions contemplated by the Loan Documents, when taken as a whole, was true and correct in all material respects, as of the date such information was furnished to Transferee, the Agents or any Lender and as of the Effective Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made.

(b)    The projections and estimates and information of a general economic nature prepared by or on behalf of any Originator, the Parent and its Subsidiaries or any of their representatives and made available by any Originator or its representatives to the Transferee, any Agent or any Lender in connection with the Transactions or the other transactions contemplated by the Loan Documents (i) have been prepared in good faith based upon assumptions believed by such Originator to be reasonable as of the date thereof (it being understood that actual results may vary materially from the projections), as of the date such projections and estimates were furnished to Transferee, the Agents or any Lender and as of the Effective Date and (ii) as of the Effective Date, have not been modified in any material respect by such Originator.

Section 3.06    No Material Adverse Effect. Since December 31, 2016, no event, change or condition has occurred that has had, or would reasonably be expected to have, a Material Adverse Effect.

Section 3.07    Litigation and Investigations. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of such Originator, threatened against or affecting such Originator or its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than Disclosed Matters) or (ii) that involve this Agreement or the First-Step Transactions.

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Section 3.08    Compliance with Laws. Such Originator is in compliance with all Requirements of Law applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. No Transferred Receivable sold or contributed by such Originator hereunder contravenes in any material respect any Requirement of Law.

Section 3.09    Taxes. Except as is not, individually or in the aggregate, reasonably expected to have a Material Adverse Effect, such Originator and each of its Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except Taxes that are being contested in good faith by appropriate proceedings and for which it has set aside on its books adequate reserves. No Tax liens have been filed and no claims are being asserted with respect to any such Taxes.

Section 3.10    ERISA. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or as set forth on Schedule 3.10, (i) each Originator and its ERISA Affiliates has maintained each Plan in compliance with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder and (ii) no ERISA Event has occurred or is reasonably expected to occur. The aggregate unfunded liabilities (determined on the basis of the assumptions and methodology utilized by each Originator and each of its ERISA Affiliates under GAAP) would not reasonably be expected to result in a Material Adverse Effect.

Section 3.11    Margin Regulations. Such Originator is not engaged in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin security”, as such terms are defined in Regulation U of the Board as now and from time to time hereafter in effect. No portion of the proceeds of the cash sales made hereunder or any distributions received by such Originator from Transferee will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or retiring any Indebtedness that was originally incurred to purchase or carry any Margin Stock or for any other purpose that might cause any portion of such proceeds to be considered a “purpose credit” within the meaning of Regulation T, U or X of the Board. Such Originator will not take or permit to be taken any action that might cause any Loan Document to violate any regulation of the Board.

Section 3.12    Credit and Collection Policy. Each Originator has complied in all material respects with its respective Credit and Collection Policy in regard to each Transferred Receivable and the related Contract, and no Originator has made any change to its respective Credit and Collection Policy, except as permitted by Section 6.02.

Section 3.13    Investment Company Status. Such Originator is not and will not be required to register as an “investment company” under, and as defined in, the Investment Company Act of 1940.

Section 3.14    Solvency. Immediately after (a) the consummation of the First-Step Transactions on the date hereof and (b) each Transfer Date to occur from and after the date hereof, (i) the present fair value of the assets of such Originator is not less than the amount required to pay its debts and other liabilities, subordinated, contingent or otherwise, (ii) the present fair saleable

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value of the property of such Originator is not less than the amount that will be required to pay its debts and other liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured, (iii) such Originator does not intend to and does not believe that it will incur debts and other liabilities, subordinated, contingent or otherwise, beyond its ability to pay such debts and liabilities as they become absolute and matured, (iv) such Originator will not have unreasonably small capital for a business or transaction in which it is engaged or is about to engage in and (v) such Originator will not transfer any Receivables to the Transferee with the intent to hinder, delay or defraud any Person.

Section 3.15    Title, Perfection and Priority. Immediately prior to the sale or contribution of such Originator’s right, title and interest to, in and under a Transferred Receivable originated by such Originator, the Related Security relating thereto and the Collections thereof by such Originator hereunder, such Originator shall have good and valid rights in or the power to transfer such Transferred Receivable, the Related Security relating thereto and the Collections thereof and title to such Transferred Receivables, the Related Security relating thereto and the Collections thereof to be sold or contributed, free and clear of all Liens (other than Liens to be released upon the transfer of such Transferred Receivable), and each such sale or contribution hereunder constitutes a valid sale or contribution, transfer and assignment of all of such Originator’s right, title and interest in, to and under such Transferred Receivables, Related Security relating thereto and Collections thereof contributed by it, free and clear of any Liens. On or before the date hereof and before the generation by such Originator of any new Transferred Receivable after the date hereof to be sold or contributed or otherwise conveyed hereunder, all financing statements and other documents, if any, required to be recorded or filed in order to perfect and protect Transferee’s ownership interest in such Transferred Receivable, Related Security relating thereto and Collections thereof against all creditors of and purchasers from such Originator will have been duly filed in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full.

Section 3.16    Information Regarding Collection Accounts. Exhibit III lists all Collection Accounts, Collection Banks and Lockboxes as of the Effective Date and such schedule correctly identifies the name, address and telephone number of each depository, the name in which the account is held and the complete account number therefor. Each Collection Account constitutes a deposit account within the meaning of the applicable UCC. No Collection Account is in the name of any person other than the Transferee.

Section 3.17    Eligible Receivables. Each Transferred Receivable reflected in any Borrowing Base Report as an Eligible Receivable was an Eligible Receivable as of the date of its transfer to the Transferee hereunder.

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Section 3.18    Reliance on Separate Legal Identity. Such Originator acknowledges that each of Transferee, the Agents and the Lenders are entering into the Loan Documents to which they are parties in reliance upon Transferee’s identity as a legal entity separate from such Originator and its Subsidiaries.

Section 3.19    Enforceability of Contracts. As of the Transfer Date with respect to any Transferred Receivable sold or contributed, as applicable, by such Originator hereunder each Contract related to such Transferred Receivable was effective to create, and had created, a legal, valid and binding obligation of the related Obligor to pay the Outstanding Principal Balance of such Transferred Receivable, enforceable against such Obligor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 3.20    Payments to Originator. With respect to each Transferred Receivable originated by such Originator, the Transfer Consideration received by such Originator constitutes reasonably equivalent value in consideration therefor and such transfer was not made for or on account of an antecedent debt. No transfer by such Originator of any Receivable hereunder is or may be voidable under any section of the Bankruptcy Code.

Section 3.21    Nature of Transferred Receivables. Each Transferred Receivable constitutes an “account” or a “payment intangible” under the UCC.

Section 3.22    No Brokers. No broker or finder acting on behalf of such Originator was employed or utilized in connection with this Agreement or the Transactions and such Originator has no obligation to any Person in respect of any finder’s or brokerage fees in connection therewith.

Section 3.23    Instructions to Obligors. All Obligors have been instructed to make payments to a Lockbox or Collection Account and, subject to Section 6.02, no Obligor has been instructed to make payments to any other accounts or lockboxes.

Section 3.24    Compliance with Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions.

(a)    None of such Originator and its Subsidiaries is (i) in violation of any Anti-Terrorism Law or (ii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

(b)    Neither such Originator nor any of its Subsidiaries, nor, to the knowledge of such Originator, any director, officer, agent, employee or other person acting on behalf of such Originator or any of its Subsidiaries has taken any action, directly or indirectly, that would result in a violation by such persons of any applicable Anti-Corruption Law; and such Originator and its Subsidiaries has instituted and maintains policies and procedures reasonably designed to promote continued compliance therewith. Since three (3) years prior to the date hereof, there has been no action taken by such Originator or any of its Subsidiaries or, to the knowledge of such Originator,

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any officer, director, or employee, or any agent, representative, sales intermediary, or other third party of such Originator or any of its Subsidiaries, in each case, acting on behalf of such Originator or any of its Subsidiaries, in violation of any applicable Anti-Corruption Law. None of such Originator or any of its Subsidiaries has been convicted of violating any Anti-Corruption Laws or subjected to any investigation by a Governmental Authority for violation of any applicable Anti-

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Corruption Laws or received any written notice, request or citation for any actual or potential noncompliance with any of the foregoing.

(c)    None of such Originator or any of its Subsidiaries or any director, officer, employee, agent, or affiliate of such Originator or any of its Subsidiaries is an individual or entity (a “Sanctioned Person”) that is, or is owned or controlled by Persons that are: (i) the subject of any sanctions administered or enforced by OFAC, the U.S. Department of State or the United Nations Security Council (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of comprehensive Sanctions. Since three (3) years prior to the date hereof, none of such Originator or any of its Subsidiaries has knowingly engaged in, or is now knowingly engaged in, or will engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was, or whose government is or was, the subject of comprehensive Sanctions.

ARTICLE IV CONDITIONS OF SALE OR CONTRIBUTION

Section 4.01    Conditions Precedent to Initial Contribution. The Initial Contribution under this Agreement is subject to the conditions precedent that:

(a)    Execution of this Agreement. Transferee and the Agents shall have received (i) from the Initial Originator either (A) a counterpart of this Agreement signed on behalf of such party or (B) written evidence satisfactory to Transferee (which may include electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement and (ii) such other certificates, documents, instruments and agreements as Transferee shall reasonably request in connection with the First-Step Transactions.

(b)    Closing Certificates; Certified Certificate of Incorporation; Good Standing Certificates. Transferee and the Agents shall have received (i) a certificate of the Initial Originator, dated the Effective Date and executed by its secretary or assistant secretary, which shall (A) certify the resolutions of its board of directors, members or other body authorizing the execution, delivery and performance of this Agreement, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of the Initial Originator authorized to sign this Agreement and (C) contain appropriate attachments, including the certificate or articles of incorporation or organization of the Initial Originator certified by the relevant authority of the jurisdiction of organization of the Initial Originator and a true and correct copy of its by-laws or operating, management or partnership agreement and (ii) a long-form good-standing certificate for the Initial Originator from its jurisdiction of organization.

(c)    Lien and Judgment Searches. Transferee and the Agents shall have received the results of recent Lien and judgment searches in each of the jurisdictions where the Initial Originator is located (within the meaning of Section 9-307 of the UCC) or in which it maintains its chief executive office or principal place of business, and such searches shall reveal no outstanding judgments against the Initial Originator or Liens on any of the Receivables, Related Security related

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thereto or Collections thereof to be transferred by the Initial Originator hereunder (other than such Liens as will be released substantially simultaneously with the Initial Contribution).

(d)    Filings, Registrations and Recordings. Each document (including any Uniform Commercial Code financing statement), as may be necessary under the UCC of all appropriate jurisdictions to perfect Transferee’s ownership interest in all Transferred Receivables, Related Security related thereto and Collections thereof in which an ownership or security interest has been assigned hereunder have been duly authorized and name the Initial Originator as the debtor/seller and Transferee as the buyer/assignor (and the Collateral Agent, for the benefit of the Lenders, as secured party/assignee) of the Transferred Receivables, Related Security related thereto and Collections thereof generated by the Initial Originator.

(e)    Opinions of Counsel. Transferee and the Agents shall have received one or more opinions of legal counsel for the Initial Originator reasonably acceptable to Transferee which address the following matters and such other matters as Transferee and the Agents may reasonably request:

(i)    due authorization, execution, delivery, enforceability and other corporate matters with respect to each of the Initial Originator;

(ii)    the perfection and priority of Transferee’s interest, under the applicable UCC, in (x) all of the Transferred Receivables and (y) all proceeds of any of the foregoing;

(iii)    the inapplicability of the doctrine of substantive consolidation to Transferee with respect to the Initial Originator in connection with any bankruptcy proceeding involving Transferee or the Initial Originator; and

(iv)    the existence of a “true sale” or “true contribution” of the Transferred Receivables from the Initial Originator to Transferee under the terms of this Agreement on each Transfer Date that may occur hereunder upon delivery of the Transfer Consideration therefor and a Transfer Report relating thereto.

(f)    Certificate. Transferee and the Agents shall have received a certificate executed by a Financial Officer of the Initial Originator certifying that, as of the date of the Initial Contribution, no Termination Event or Unmatured Termination Event exists and is continuing, stating that the representations and warranties of the Initial Originator contained in Article III are true and correct in all material respects (without duplicating materiality standards in such representations and warranties) as of such date and certifying any other factual matters as may be reasonably requested by the Transferee.

(g)    All of the conditions under Section 7.01 of the Credit Agreement shall have been satisfied or waived in accordance with the terms thereof.

Section 4.02    Conditions Precedent to Subsequent Contributions or Sales. Each contribution or sale after the Initial Contribution shall be subject to the further conditions precedent that: (a) the Termination Date shall not have occurred; and (b) on the date such Transferred

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Receivable came into existence, the following statement shall be true (and acceptance of the Transfer Consideration for such Transferred Receivable shall constitute a representation and warranty by the applicable Originator that such statements is then true): the representations and warranties set forth in Article III are true and correct in all material respects (without duplicating materiality standards in such representations and warranties) on and as of the date such Transferred Receivable came into existence as though made on and as of such date, except to the extent such representations and warranties are expressly limited to an earlier date.

Notwithstanding the foregoing conditions precedent, upon delivery of the Transfer Consideration for any Transferred Receivable, title to such Transferred Receivable and the Related Security and Collections with respect thereto shall vest in Transferee, whether or not the conditions precedent to Transferee’s obligation to deliver the Transfer Consideration for such Transferred Receivable were in fact satisfied. The failure of any Originator to satisfy any of the foregoing conditions precedent, however, shall give rise to a right of Transferee to rescind the related sale or contribution and (i) (in the case of a contribution) reduce the value of SPV Holdco’s equity interest in Transferee and the Originator’s equity interest in SPV Holdco, or (ii) (in the case of a sale for which the Transfer Consideration was a Subordinated Note) reduce the outstanding principal amount of such Subordinated Note, or (iii) (in the case of a sale for which the Transfer Consideration was cash) a right of the Transferee to receive a Transfer Consideration Indemnification Payment in respect of such Transferred Receivable. Any such reduction or such Transfer Consideration Indemnification Payment shall be in an amount equal to the Transfer Consideration (and corresponding to the type thereof) that shall have been delivered with respect to any Transferred Receivables related thereto.

ARTICLE V AFFIRMATIVE COVENANTS

Until the date on which this Agreement terminates in accordance with its terms, each Originator, with respect to itself hereby covenants as set forth below:

Section 5.01    Certain Information. Such Originator will furnish to the Transferee and the Agents from time to time such reports and other financial information with respect to it and the Transferred Receivables, Related Security or Collections, in each case, as the Transferee and the Agents may reasonably request.

Section 5.02    Notices of Material Events. Such Originator will furnish to Transferee (with a copy to Agents) prompt written notice of the following:

(a)    the occurrence of any Termination Event or Unmatured Termination Event;

(b)    the filing or commencement of any action, suit or proceeding, whether at law or in equity or by or before any Governmental Authority or in arbitration, against such Originator or any of its Material Subsidiaries as to which an adverse determination is reasonably probable and which, if adversely determined, would reasonably be expected to have a Material Adverse Effect;

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(c)    any Lien, other than in favor of the Collateral Agent, is filed or asserted against any Transferred Receivable, Related Security related thereto or Collections thereof and any Financial Officer or executive officer of such Originator, or other officer or similar official thereof responsible for the administration of the obligations of such Originator in respect of this Agreement, has actual knowledge thereof;

(d)    the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred and are occurring, would reasonably be expected to have a Material Adverse Effect;

(e)    any material amendment of its Credit and Collection Policy; and

(f)    any other development specific to any Originator that is not a matter of general public knowledge that has had, or would reasonably be expected to have, a Material Adverse Effect.

Each notice delivered under this Section 5.02 shall include a statement of a Financial Officer or other executive officer of such Originator setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

Section 5.03    Compliance with Agreements and Laws. Such Originator will (i) perform each of its obligations under this Agreement and (ii) comply with all Federal, state and local laws and regulations applicable to it and the Transferred Receivables originated by such Originator, including those relating to truth-in-lending, retail installment sales, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices, privacy, licensing, taxation, ERISA and labor matters and Environmental Laws and environmental permits, except where (a) the requirement to comply therewith is contested in good faith by appropriate proceedings or (b) the failure to so comply, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 5.04    Existence; Conduct of Business. Such Originator will (a) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted and (b) carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted, except, in each case described in subclauses (a) and (b), where the failure to do so would not reasonably be expected to result in a Material Adverse Effect; provided that any one or more Originators may merge or consolidate into or with any other Originator (the surviving or resultant entity of which shall assume thereby all of any such non-surviving or consolidated Originators’ rights, duties and obligations hereunder and under any Loan Documents to which such Originators are parties), and no provision herein or in any Loan Documents to which such Originators are parties shall be deemed to prohibit or to be breached by such merger or consolidation; and provided, further, that any one or more Originators may merge or consolidate into any Wholly Owned Subsidiary of Parent (other than any other Originator or SPV Holdco) organized under the laws of, and with its principal place of business in, any State of the United

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States or the District of Columbia (the surviving or resultant entity of which shall assume thereby all of any such non-surviving or consolidated Originators’ rights, duties and obligations hereunder and under any Loan Documents to which such Originators are parties) subject to satisfaction of the following conditions: (i) advance written notice to the Agents of not less than 30 days, (ii) the prior written consent of the Administrative Agent (and, if such Originator is the Servicer, the Collateral Agent) not to be unreasonably withheld or delayed and (iii) field examinations reasonably related to the review of such merger or consolidation (separate from any conducted pursuant to Section 5.13) and such other information, certificates, documents, instruments and agreements relating to such assumption as any Agent shall reasonably request.

Section 5.05    Maintenance of Assets and Properties. Such Originator will keep and maintain all assets and other property material to the conduct of its business in good working order and condition, ordinary wear and tear and casualty or condemnation excepted, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

Section 5.06    Payment of Obligations. Such Originator will, and will cause its Subsidiaries to, pay or discharge as the same shall become due and payable in the normal course of its business, all of their respective Material Indebtedness and other material liabilities and obligations, including material Taxes, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings and the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect or (b) it or such Subsidiary, if any, has set aside on its books adequate reserves with respect thereto in accordance with GAAP.

Section 5.07    Title. Such Originator will take all necessary action to establish and maintain, irrevocably in Transferee (i) legal and equitable title to the Transferred Receivables originated by such Originator and the Collection Accounts and (ii) all of such Originator’s right, title and interest in the Related Security associated with such Transferred Receivables, in each case, free and clear of any Liens, other than Liens in favor of Transferee (or its assigns) (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect Transferee’s ownership interest in such Transferred Receivables, Collection Accounts and Related Security and such other action to perfect, protect or more fully evidence the ownership interest of Transferee as Transferee may reasonably request).

Section 5.08    Originator to Maintain Perfection and Priority. In order to evidence the interests of Transferee under this Agreement, such Originator shall, from time to time take such action, or execute and deliver such instruments as may be necessary or advisable to maintain and perfect, as a first-priority interest, Transferee’s ownership interest in the Transferred Receivables originated by such Originator, Related Security related thereto and Collections thereof. Such Originator, at the request of Transferee, shall, from time to time, prepare and present to Transferee upon request for Transferee’s authorization and approval all financing statements, amendments, continuations (or initial financing statements in lieu of continuations), or other filings necessary to continue, maintain and perfect Transferee’s ownership interest in such Transferred Receivables, Related Security related thereto and Collections thereof as a first-priority interest. Such Originator

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hereby authorizes Transferee to file such financing statements under the UCC. Notwithstanding anything else in the Loan Documents to the contrary, (i) no such Originator shall, prior to the Payment Date, have any authority to file a termination, partial termination, release, partial release or any amendment of any such financing statements that deletes the name of a debtor or excludes collateral of any such financing statements, without the prior written consent of Transferee and (ii) such Originator shall not be required to take any actions in compliance with the laws of any jurisdiction outside of the United States in connection with the transfer or pledge pursuant to the Loan Documents of any Transferred Receivables of an Obligor domiciled in such jurisdiction.

Section 5.09    Deposit of Collections. Such Originator shall (i) deposit or cause to be deposited promptly into a Collection Account or a Lockbox (or in the case of cash Collections not received in a Lockbox or by wire transfer, within one Business Day after receipt by the collections department of such Originator), all Collections it may receive with respect to any Transferred Receivable originated by such Originator, (ii) instruct all Obligors to remit all their payments in respect of Transferred Receivables to Lockboxes or Collection Accounts, subject to Section 6.02, and (iii) not deposit or otherwise credit, or cause or permit to be so deposited or credited, to any Collection Account cash or cash proceeds other than Collections of Transferred Receivables. Any Collections received by any Originator other than by its collections department shall be forwarded to its collections department within two Business Days after receipt thereof.

Section 5.10    Use of Proceeds. Such Originator shall not use any portion of any Transfer Consideration received hereunder (i) for a purpose that violates, or would be inconsistent with, any Requirement of Law or (ii) to acquire any security in any transaction which is subject to Section 12, 13 or 14 of the Securities Exchange Act of 1934, as amended.

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Section 5.11    Books and Records. Such Originator will keep proper books and records in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.

Section 5.12    Access to Accountants. Such Originator hereby authorizes Transferee (or an Agent as Transferee’s assignee) to communicate directly with its independent certified public accountants and authorizes and shall instruct those accountants and advisors to disclose and make available to Transferee (or an Agent as Transferee’s assignee) any and all reports and other financial information relating to such Originator and its Subsidiaries (including copies of any issued management letters) reasonably requested by the Agents, and to discuss matters with respect to its business, financial condition and other affairs; provided that, (x) only Transferee (or an Agent as Transferee’s assignee) may exercise rights under this Section 5.12 and (y) excluding any such communications during the occurrence and continuance of a Termination Event or Unmatured Termination Event, Transferee (or an Agent as Transferee’s assignee) may make up to two communications in any calendar year and, if a Termination Event or Unmatured Termination Event has occurred and is continuing, as many as Transferee (or an Agent as Transferee’s assignee) reasonably determines to be appropriate (for purposes of this proviso, a single “communication” may consist of multiple telephone conferences and items of correspondence so long as such telephone conferences and items of correspondence occur at or around the same period of time).

Section 5.13    Audits. Such Originator will, from time to time during regular business hours as requested by the Transferee and the Agents upon reasonable notice and at the sole cost of the Originators, permit the Transferee and the Agents, their agents or representatives and other third parties retained by the Agents for purposes of field examinations and collateral monitoring services: (i) to examine and make copies of and abstracts from all Records in the possession or under the control of such Person relating to the Transferred Receivables, including, without limitation, the related Contracts and (ii) to visit the offices and properties of such Person for the purpose of examining such materials described in clause (i) above, and to discuss matters relating to such Person’s financial condition or the Transferred Receivables or any Person’s performance under any of the Loan Documents or any Person’s performance under the Contracts and, in each case, with any of the officers or employees of any Originator having knowledge of such matters; provided that, excluding any such field examinations during the occurrence and continuance of a Termination Event or Unmatured Termination Event, only two field examinations may be conducted during any calendar year and, if a Termination Event or Unmatured Termination Event has occurred and is continuing, as many as Transferee (or an Agent as Transferee’s Assignee) reasonably determines to be appropriate (for purposes of this proviso, a single “field examination” may consist of multiple examinations and visits so long as such examinations and visits occur within a fourteen-day period or such longer period reasonably necessary to complete the related audit). The Transferee and the Agents shall perform such inspections together and shall cooperate with one another to establish the scope of any audit and the timing of such inspections. In addition to, and not in limitation of, the foregoing, whether or not a Termination Event or Unmatured Termination Event exists, the Transferee and the Collateral Agent shall have the right, exercisable at any time but on no more than two (2) occasions during any calendar year, to verify with Obligors the validity or amount of Transferred Receivables and Related Security, provided that, (a) such verification shall be undertaken by a firm selected by the Agents (any such firm being referred to herein as the “Auditor”),

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(b) the Auditor shall expressly agree in writing (i) the scope and detailed verification procedures required by the Agents, (ii) the basis of sampling the Transferred Receivables and Related Security that shall be subject to verification procedures and (iii) that the Agents shall have full access to the results of such verification, which shall be provided by the Auditor in a written form, (c) the Auditor that is then undertaking verifications of Transferred Receivables and Related Security on behalf of the Agents shall state to the Obligors that such verification (whether undertaken in writing or by telephone verification) is being conducted on behalf of the Originators, and (d) nothing contained in this Section 5.13 shall limit or impair the verification rights of the Agents set forth in Section 5.05(d) of the Credit Agreement. Such Originator shall cooperate fully with the Collateral Agent in an effort to facilitate and promptly conclude any such verification process.

Section 5.14    Compliance with Contracts and Credit and Collection Policy. Such Originator will (i) perform and comply in all material respects with all provisions, covenants and other obligations required to be observed by it under the Contracts related to the Transferred Receivables originated by such Originator, in each case to the same extent as though such Transferred Receivables had not been transferred to Transferee and (ii) comply in all material respects with its respective Credit and Collection Policy in regard to each Transferred Receivable originated by such Originator and the related Contract.

Section 5.15    Separateness of Transferee. Such Originator will maintain Transferee’s identity as a separate legal entity and to make it manifest to third parties that Transferee is an entity with assets and liabilities distinct from those of such Originator and any Affiliates thereof and not just a division of such Originator or any such Affiliate. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, such Originator (i) will not hold itself out to third parties as liable for the debts of Transferee nor assert that it owns the Transferred Receivables originated by such Originator, and other assets, transferred to Transferee and (ii) will take all other actions necessary on its part to ensure that Transferee is at all times in compliance with the “separateness covenants” set forth in Section 8.15 of the Credit Agreement.

Section 5.16    Further Assurances. Without limiting the foregoing, such Originator will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to Transferee (or its assigns) such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements and other documents and such other actions or deliveries of the type required by Section 5.08, as applicable), which may be required by law or which Transferee (or its assigns) may, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents and to evidence the sale or contribution of the Transferred Receivables originated by such Originator, the Related Security related thereto and the Collections thereof under this Agreement, all at the expense of such Originator.

ARTICLE VI NEGATIVE COVENANTS

Until the date on which this Agreement terminates in accordance with its terms, each Originator, with respect to itself hereby covenants as set forth below:

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Section 6.01    Change in Name, Jurisdiction of Organization. Such Originator will not change (i) its name as it appears in official filings in the jurisdiction of its organization, (ii) its status as a “registered organization” (within the meaning of Article 9 of any applicable enactment of the UCC) in such jurisdiction, (iii) its organizational identification number, if any, issued by its jurisdiction of organization, or (iv) its jurisdiction of organization unless it shall have in any such case: (A) given Transferee (or its assigns) at least 30 days’ prior written notice thereof and (B) delivered to Transferee (or its assigns) all financing statements, instruments and other documents requested by Transferee (or its assigns) in connection with such change or relocation.

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Section 6.02    Modifications of Transferred Receivables, Credit and Collection Policies and Instructions to Obligors. Such Originator shall not, without the prior written consent of the Collateral Agent, not to be unreasonably withheld or delayed, (i) extend, amend, forgive, discharge, compromise, waive, cancel or otherwise modify the terms of any Transferred Receivable or amend, modify or waive any term or condition of any Contract related to the collection and enforcement (including the manner of payment) of the Transferred Receivables; provided that such Originator, as Servicer or a delegate of Servicer, may take such actions as are permitted pursuant to the Loan Documents and the Credit and Collection Policies, or (ii) amend, modify or waive any term or provision of the Credit and Collection Policies in any material respect. Such Originator shall not make any change in the instructions to Obligors regarding the deposit of Collections with respect to the Transferred Receivables, except (i) pursuant to Section 9.13 or (ii) as and to the extent instructed by Transferee in furtherance of any such change the Transferee is required or permitted to make under Section 3.01 of the Credit Agreement or pursuant to Section 9.02 of the Credit Agreement.

Section 6.03    No Commingling. Such Originator shall not deposit, or permit the deposit of, any funds that do not constitute Collections of Transferred Receivables into any Collection Account.

Section 6.04    Sales, Liens. Such Originator will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or grant any option with respect to, or create or suffer to exist any Lien upon (including the filing of any financing statement) or with respect to, any Transferred Receivable originated by such Originator, Related Security related thereto or Collections thereof, or any Lockbox or Collection Account, or assign any right to receive income with respect thereto other than, in each case, the creation of the interests therein in favor of Transferee (or its assigns) provided for in any Loan Document, and such Originator will defend the right, title and interest of Transferee in, to and under any of the foregoing property, against all claims of third parties.

Section 6.05    Insolvency Proceedings. Such Originator shall not, nor will it permit any Subsidiary to, (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(f), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Originator or Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing.

Section 6.06    Sale Characterization. Such Originator will not, and will not permit any Affiliate to, make statements or disclosures, prepare any financial statements or in any other respect account for or treat the transactions contemplated hereby in any manner other than as a contribution or sale, as the case may be, of the Transferred Receivables originated by such Originator, the Related Security related thereto and the Collections thereof by such Originator to Transferee or

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in any other respect account for or treat the transactions contemplated hereby in any manner other than as a contribution or sale, as the case may be, of such Transferred Receivables, the Related Security related thereto and the Collections thereof by such Originator to Transferee except to the extent that (i) such transactions are not recognized on account of consolidated financial reporting in accordance with GAAP and (ii) in accordance with applicable tax principles, each transfer is ignored for tax reporting purposes (it being understood that such Originator shall continue to treat the transactions contemplated hereby as described above for all legal purposes notwithstanding any such accounting standards or tax principles).

ARTICLE VII TERMINATION EVENTS

Section 7.01    Termination Events. The occurrence of any one or more of the following events shall constitute a “Termination Event”:

(a)    any Originator shall fail to make any payment or deposit required hereunder when due and such failure shall continue for three consecutive Business Days after the earlier to occur of the date on which such Originator obtains actual knowledge of such failure or the date on which written notice of such failure is delivered to such Originator by Transferee or the Agents;

(b)    any representation or warranty made or deemed made by or on behalf of any Originator in or in connection with this Agreement or in any certificate, Transfer Report or other document furnished pursuant to or in connection with this Agreement, shall prove to have been false or misleading in any material respect when made or deemed made, and, if capable of being remedied, such event shall continue unremedied for two Business Days; provided that, in the event any of the representations and warranties set forth in Section 3.17, Section 3.19 or Section 3.21 is not true when made or deemed made with respect to any Transferred Receivable, such event shall not constitute a Termination Event if the applicable Originator timely pays to Transferee the Outstanding Principal Balance of such Transferred Receivable in cash in accordance with Section 2.04;

(c)    any Originator shall fail to observe or perform any covenant, condition or agreement contained in Section 2.02(a), 5.02(a), 5.04(a), 5.09, 5.10 or in Article VI; provided that solely in the case of Section 5.09 such failure shall continue unremedied for three Business Days;

(d)    any Originator shall fail to observe or perform any material covenant, condition or agreement contained in this Agreement (other than those which constitute a Termination Event under another subsection of this Section 7.01), and such failure shall continue unremedied for a period of 30 days after the earlier of (i) such Originator’s actual knowledge of such failure and (ii) the date on which written notice of such failure shall have been given to such Originator by the Transferee or the Agents;

(e)    with respect to any Originator, (i) any event or condition occurs that (A) results in any Material Indebtedness of such Originator becoming due prior to its scheduled maturity or (B) enables or permits (all applicable grace periods having expired) the holder or holders of any

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Material Indebtedness of such Originator or any trustee or agent on its or their behalf to cause any such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or (ii) such Originator shall fail to pay the principal of any such Material Indebtedness at the stated final maturity thereof; provided that this clause (e) shall not apply to secured Indebtedness that (x) becomes due in whole or in part as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or as a result of any other customary mandatory prepayment events, and (y) is timely repaid as and to the extent required by the agreements governing such Indebtedness;

(f)    an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) liquidation, reorganization or other relief in respect of any Originator, or of a substantial part of the assets of any Originator, under the Bankruptcy Code, or any other bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager, trustee, custodian, sequestrator, conservator or other similar official for any Originator or for a substantial part of the assets of any Originator or (iii) the winding up or liquidation of any Originator; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;

(g)    any Originator shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under the Bankruptcy Code, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (f) above, (iii) apply for or consent to the appointment of an administrator, administrative receiver, compulsory manager, receiver, trustee, custodian, sequestrator, conservator or similar official for any Originator or for a substantial part of the assets of such Originator, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

(h)    any Originator shall admit in writing its inability or fail generally to pay its debts as they become due;

(i)    failure of any Originator to pay one or more final judgments aggregating in excess of $5,000,000 (to the extent not covered by insurance) which judgments are not discharged or effectively waived or stayed for a period of 45 days, or any action shall be legally taken by a judgment creditor to levy upon assets or properties of such Originator to enforce any such judgments that individually or in the aggregate exceed $5,000,000;

(j)    an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;

(k)    the Internal Revenue Service shall file notice of a Lien pursuant to Section 6323 of the Code with regard to any of the Transferred Receivables or the Related Security or the PBGC shall file notice of a Lien pursuant to Section 4068 of ERISA with regard to any of the

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Transferred Receivables or the Related Security and any such Lien shall not have been released within seven days after the date of such filing;

(l)    any event shall have occurred that, alone or together with other events, has a Material Adverse Effect;

(m)    a Change in Control shall occur;

(n)    any material provision of this Agreement shall terminate in whole or in part (except in accordance with its terms), or shall cease to be valid, binding and enforceable in accordance with its terms against any Originator, or any Originator shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of this Agreement has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms;

(o)    Transferee shall cease for any reason to have a valid and perfected first priority ownership interest in the Transferred Receivables, the Related Security relating thereto and the Collections thereof, and proceeds of the foregoing, or Transferee (or its assigns) shall incur any loss, for which it is not indemnified in full under any Loan Documents as and when required in accordance with the terms of the applicable indemnification provision, resulting from any Originator’s failure to perfect Transferee’s ownership interest in that portion of the Related Security in which perfection cannot be accomplished under Article 9 of the relevant UCC; or

(p)    any Originator shall deliver an Immediate Originator Termination Notice.

Section 7.02    Remedies. Upon the occurrence and during the continuation of a Termination Event, Transferee (or its assigns) may take any of the following actions: (a) declare the Termination Date to have occurred, whereupon the Termination Date shall forthwith occur, without demand, protest or further notice of any kind, all of which are hereby expressly waived by each Originator; provided, however, that upon the occurrence of a Termination Event described in Section 7.01(f) or Section 7.01(g), or of an actual or deemed entry of an order for relief with respect to any Originator under the Bankruptcy Code, the Termination Date shall automatically occur, without demand, protest or any notice of any kind, all of which are hereby expressly waived by each Originator and (b) to the fullest extent permitted by applicable law, declare that the Default Fee shall accrue with respect to any amounts then due and owing by each Originator to Transferee. The aforementioned rights and remedies shall be without limitation and shall be in addition to all other rights and remedies of Transferee and its assigns otherwise available under any other provision of this Agreement, by operation of law, at equity or otherwise, all of which are hereby expressly preserved, including, without limitation, all rights and remedies provided under the UCC, all of which rights shall be cumulative.

ARTICLE VIII INDEMNIFICATION

Section 8.01    Indemnities by Originators. Without limiting any other rights that Transferee may have hereunder or under any Requirement of Law, each Originator hereby agrees

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to indemnify (and pay upon demand to) Transferee and its assigns and their respective officers, directors, agents and employees (each, an “Indemnified Party”) from and against any and all damages, losses, claims, taxes, liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’ fees, disbursements and other charges (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of the matters set forth in clauses (i) through (xv) below, excluding, however:

(a)    Indemnified Amounts to the extent a final, non-appealable judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted primarily from gross negligence or willful misconduct on the part of any Indemnified Party or any of its affiliates or any of the officers, directors, employees, controlling persons or members of any of the foregoing;

(b)    Indemnified Amounts to the extent the same includes losses in respect of Transferred Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or

(c)    taxes on or measured by the overall net income of such Indemnified Party, imposed by the United States, the Indemnified Party’s jurisdiction of organization or the jurisdiction in which its principal office is located (or in the case of an individual, primary residence), or any political subdivision of any thereof, or any other jurisdiction with which such Indemnified Party has (other than in connection with the transactions contemplated hereby) a present or former connection;

provided, however, that nothing contained in this sentence shall limit the liability of any Originator or limit the recourse of Transferee to any Originator for amounts otherwise specifically provided to be paid by such Originator under the terms of this Agreement. Subject in each case to clauses (a), (b) and (c) above, an Originator shall indemnify Transferee and its assigns for Indemnified Amounts relating to or resulting from:

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(i)    any representation or warranty made by such Originator (or any officers of such Originator) under or in connection with any Transfer Report, this Agreement, or any other information or report delivered by such Originator pursuant hereto or thereto that shall have been false or incorrect when made or deemed made (unless, in the case of any such representation or warranty made in respect of a Transferred Receivable, Transferee has received a Transfer Consideration Indemnification Payment in respect of clause (b) of Section 2.04 hereof with respect thereto);

(ii)    the failure by such Originator to comply with any Requirement of Law with respect to any Transferred Receivable originated by such Originator or Contract related thereto, or the nonconformity of such Transferred Receivable or related Contract with any such Requirement of Law or any failure of such Originator to keep or perform any of its obligations, express or implied, with respect to any Contract;

(iii)    any failure of such Originator to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement;

(iv)    any products liability, personal injury or damage, suit or other similar claim arising out of or in connection with merchandise, insurance or services that are the subject of any Contract or any Transferred Receivable originated by such Originator;

(v)    any dispute, claim, offset or defense (other than a discharge in bankruptcy of the related Obligor) of the Obligor to the payment of any Transferred Receivable originated by such Originator (including, without limitation, a defense based on such Transferred Receivable or the related Contract not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Transferred Receivable or the furnishing or failure to furnish such merchandise or services;

(vi)    the commingling of Collections of Transferred Receivables at any time with other funds;

(vii)    any investigation, litigation or proceeding related to or arising from this Agreement or any other Loan Document, the transactions contemplated hereby, the use of the proceeds of the transfers hereunder, the ownership of the Transferred Receivables or any other investigation, litigation or proceeding relating to such Originator in which any Indemnified Party becomes involved as a result of any of the transactions contemplated hereby;

(viii)    any inability to litigate any claim against any Obligor in respect of any

Transferred Receivable originated by such Originator as a result of such Obligor being immune from civil and commercial law and suit on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;

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(ix)    any Termination Event described in Section 7.01(f) (g) or (h) with respect to such Originator;

(x)    any failure to vest and maintain vested in Transferee, or to transfer to Transferee, legal and equitable title to, and ownership of, the Transferred Receivables originated by such Originator and the related Collections, and all of such Originator’s right, title and interest in the Related Security associated with such Transferred Receivable and the Collections thereof, in each case, free and clear of any Lien except for Liens in favor of Transferee and its assigns;

(xi)    the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to any Transferred Receivable originated by such Originator, the Related Security and Collections with respect thereto, and the proceeds of any thereof, whether at the time of the transfer or at any subsequent time;

(xii)    any action or omission by such Originator which reduces or impairs the rights of Transferee (or its assigns) with respect to any Transferred Receivable originated by such Originator or the value of any such Transferred Receivable;

(xiii)    any attempt by any Person to void any sale or contribution hereunder under statutory provisions or common law or equitable action;

(xiv)    the failure of the information specified in any Transfer Report regarding a Transferred Receivable to have been accurate in all material respects as of the date of its transfer to Transferee; and

(xv)    the failure of such Originator duly and punctually to pay and perform its indemnity or reimbursement obligations to providers of surety bonds guaranteeing the payment by such Originator of U.S. Customs duties.

Section 8.02    Other Costs and Expenses. Each Originator shall pay to Transferee promptly on demand all reasonable costs and out-of-pocket expenses in connection with the preparation, execution, delivery and administration of this Agreement, the transactions contemplated hereby and the other documents to be delivered hereunder, or any amendment or modification hereto or thereto. Each Originator shall pay to Transferee promptly on demand any and all reasonable costs and expenses of Transferee, if any, including reasonable counsel fees and expenses in connection with the enforcement of this Agreement and the other documents delivered hereunder and in connection with any restructuring or workout of this Agreement or such documents, or the administration of this Agreement following a Termination Event.

ARTICLE IX MISCELLANEOUS

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Section 9.01    Waivers and Amendments. (a) No failure or delay on the part of Transferee (or its assigns) in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy. The rights and remedies herein provided shall be cumulative and nonexclusive of any rights or remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which given.

(b)    No provision of this Agreement may be amended, supplemented, modified or waived except in writing signed by each Originator and Transferee and, to the extent required under the Credit Agreement, the Administrative Agent.

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Section 9.02    Notices. All communications and notices provided for hereunder shall be in writing (including bank wire, telecopy or electronic facsimile transmission or similar writing) and shall be given to the other parties hereto at their respective addresses or telecopy numbers set forth on Exhibit VI hereto or at such other address or telecopy number as such Person may hereafter specify for the purpose of notice to each of the other parties hereto. Each such notice or other communication shall be effective (a) if given by telecopy, upon the receipt thereof, (b) if given by mail, 10 Business Days after the time such communication is deposited in the mail with first class postage prepaid or (c) if given by any other means, when received at the address specified in this Section 9.02.

Section 9.03    Protection of Ownership Interests of Transferee. (a) Each Originator agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents, and take all actions, that may be necessary or desirable, or that Transferee (or its assigns) may request, to perfect, protect or more fully evidence the interest of Transferee hereunder and the interest in the Transferred Receivables originated by such Originator, Related Security relating thereto and Collections thereof, or to enable Transferee (or its assigns) to exercise and enforce their rights and remedies hereunder. During the occurrence and continuance of an Event of Default, Transferee (or the Agents) may, at the related Originator’s sole cost and expense, direct such Originator to notify the Obligors of such Transferred Receivables of the ownership interests of Transferee under this Agreement. During the occurrence and continuance of an Event of Default or a Liquidity Event, Collateral Agent may exercise all rights available to it under each Collection Account Agreement.

(b)    If any Originator fails to perform any of its obligations under Section 9.03(a), Transferee (and Collateral Agent, as Transferee’s assignee) may (but shall not be required to) upon notice to such Originator perform, or cause performance of, such obligations, and Transferee’s (or such assigns’) costs and expenses incurred in connection therewith shall be payable by such Originator as provided in Section 8.02. Each Originator irrevocably authorizes Transferee (and Collateral Agent, as Transferee’s assignee) at any time and from time to time in the sole discretion of Transferee (or such assignee), and appoints Transferee (and such assignee) as its attorney(s)-in-fact, to act on behalf of such Originator (i) to execute (if required) on behalf of such Originator as debtor or seller and to file financing statements necessary or desirable in Transferee’s (or such assignee’s) sole discretion to perfect and to maintain the perfection and priority of the ownership interest of Transferee in the Transferred Receivables originated by such Originator and associated Related Security and Collections and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to such Transferred Receivables as a financing statement in such offices as Transferee (or the Collateral Agent, as Transferee’s assignee) in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of Transferee’s ownership interest in such Transferred Receivables. This appointment is coupled with an interest and is irrevocable. Each Originator hereby (A) authorizes Transferee (and the Collateral Agent, as Transferee’s assignee) to file financing statements and other filing or recording documents with respect to the Transferred Receivables originated by such Originator, Related Security and Collections (including any amendments thereto, or continuation or termination statements thereof), without further authorization of such Originator, in such form and in such offices as Transferee (or such assignee) reasonably determines appropriate to perfect or maintain

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the perfection of the ownership or security interests of Transferee (and the Collateral Agent, as Transferee’s assignee) hereunder, (B) acknowledges and agrees that it is not authorized to, and will not, file financing statements or other filing or recording documents with respect to such Transferred Receivables, Related Security or Collections (including any amendments thereto, or continuation or termination statements thereof), without the express prior written approval by the Collateral Agent (as Transferee’s assignee), consenting to the form and substance of such filing or recording document, and (C) approves, authorizes and ratifies any filings or recordings made by or on behalf

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of the Collateral Agent (as Transferee’s assignee) in connection with the perfection of the ownership or security interests in favor of Transferee or the Collateral Agent (as Transferee’s assignee).

Section 9.04    Confidentiality. (a) Each Originator shall maintain and shall cause each of its employees and officers to maintain the confidentiality of any fee letters and any confidential or proprietary information with respect to the Agents (and their affiliates) and the Agents’ (and their affiliates’) business obtained by it in connection with the structuring, negotiating and execution of the transactions contemplated herein, except (i) to the extent any such information becomes public information other than through a disclosure in violation hereof, (ii) to the extent such information becomes available to Transferee on a non-confidential basis from a source other than from any Originator and (iii) that such Originator and its officers and employees may disclose such information to such Originator’s (and its Affiliates’) directors, external accountants and attorneys and in accordance with any applicable law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law) (provided that notice of any such law, rule, regulation, direction, request, order or proceedings shall be promptly furnished to the Transferee unless such notice is legally prohibited).

(b)    Anything herein to the contrary notwithstanding, but subject to Section 12.12 of the Credit Agreement, each Originator hereby consents to the disclosure of any nonpublic information with respect to it (i) to Transferee, the Agents or the Lenders, by each other, (ii) by Transferee or the Agents to any prospective or actual assignee or participant of any of them and (iii) by the Agents to any rating agency, commercial paper dealer or provider of a surety, guaranty or credit or liquidity enhancement to any entity organized for the purpose of purchasing, or making loans secured by, financial assets for which the Agents, the Lenders or one of their respective affiliates act as the administrator and/or agent and to any officers, directors, employees, outside accountants and attorneys of any of the foregoing; provided that each such Person is informed of the confidential nature of such information. In addition, the Agents and the Lenders may disclose any such nonpublic information in accordance with any law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law) (provided that notice of any such law, rule, regulation, direction, request, order or proceedings shall be promptly furnished to the Transferee unless such notice is legally prohibited).

(c)    Transferee agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority, (iii) to the extent required by Requirement of Laws or by any subpoena or similar legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) to any Agent or Lender, (vii) with the consent of any Originator or (viii) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to Transferee on a non-confidential basis from a source other than any Originator; provided

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that notice of any request, requirement or legal process referred to in subclauses (ii) and (iii) shall be promptly furnished to the Transferee unless such notice is legally prohibited. For the purposes of this Section, “Information” means all information received from any Originator relating to any Originator, the Obligors or their business, other than any such information that is or becomes publicly available or was otherwise available to Transferee on a non-confidential basis prior to disclosure by any Originator. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 9.05    Bankruptcy Petition. Each of the Originators covenants and agrees that, prior to the date that is one year and one day after the later of (x) the Payment Date and (y) the Collection Date, it will not institute against, or join any other Person in instituting against, Transferee any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceedings.

Section 9.06    Limitation of Liability. Except with respect to any claim arising out of the willful misconduct or gross negligence of the Agents or the Lenders, no claim may be made by any Originator or any other Person against the Agents or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and each Originator hereby waives, releases, and agrees not to xxx upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Section 9.07    CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402 BUT OTHERWISE WITHOUT REFERENCE TO LAWS CONCERNING CONFLICTS OF LAW OR CHOICE OF FORUM.

Section 9.08    CONSENT TO JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS AGREEMENT AND EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF TRANSFEREE (OR ITS ASSIGNS) TO BRING PROCEEDINGS AGAINST ANY ORIGINATOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY

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ORIGINATOR AGAINST TRANSFEREE (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY ANY ORIGINATOR PURSUANT TO THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN THE BOROUGH OF MANHATTAN.

Section 9.09    WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

Section 9.10    Integration; Binding Effect; Survival of Terms. (a) This Agreement and each other Loan Document contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.

(b)    This Agreement shall be binding upon and inure to the benefit of each Originator, Transferee and their respective successors and permitted assigns (including any trustee in bankruptcy). No Originator may assign any of its rights and obligations hereunder or any interest herein without the prior written consent of Transferee; provided that no consent shall be required for a merger or consolidation referred to in the proviso to Section 5.04. Transferee may assign at any time its rights and obligations hereunder and interests herein to any other Person without the consent of any Originator. Without limiting the foregoing, each Originator acknowledges that Transferee, pursuant to the Credit Agreement, may assign to the Collateral Agent for the benefit of the Agents and the Lenders and their assigns, its rights, remedies, powers and privileges hereunder and that the Collateral Agent may further assign such rights, remedies, powers and privileges to the extent permitted in the Credit Agreement. Each Originator agrees that the Agents and the Lenders and their respective successors and assigns are intended third party beneficiaries of this Agreement and that the Agents, as the Transferee’s assigns, and the Agents’ assigns shall, subject to the terms of the Credit Agreement, have the right to enforce this Agreement and to exercise directly all of Transferee’s rights and remedies under this Agreement on behalf of the Agents and the Lenders and their respective successors and assigns (including the right to give or withhold any consents or approvals of Transferee to be given or withheld hereunder) and each Originator agrees to cooperate fully with the Agents and their assigns in the exercise of such rights and remedies. This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms and shall remain in full force and effect until terminated in accordance with its terms; provided,

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however, that the rights and remedies with respect to (i) any breach of any representation and warranty made by any Originator pursuant to Article III; (ii) the indemnification and payment provisions of Article VIII; and (iii) Section 9.05 shall be continuing and shall survive any termination of this Agreement.

Section 9.11    Counterparts; Severability; Section References. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page by facsimile or other means of electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9.12    Addition of Originators. Additional Persons that are Wholly Owned Subsidiaries of Parent may be added as Originators hereunder, with the prior written consent of Transferee and the Collateral Agent (such consent not to be unreasonably withheld); provided that the following conditions are satisfied on or before the date of such addition:

(a)    the Servicer shall have given Transferee and the Agents at least 15 days’ prior written notice of such proposed addition and the identity of the proposed additional Originator and shall have provided such other information with respect to such proposed additional Originator as Transferee and the Agents may reasonably request;

(b)    each of the conditions set forth in Section 4.01(b), (c), (d), (e), and (f) shall have been satisfied in respect of the proposed Originator;

(c)    the proposed Originator shall have executed an Additional Originator Supplement substantially in the form of Exhibit I;

(d)    Transferee shall have received copies of a supplement to the Credit and Collection Policy applicable to such proposed Originator, which supplement shall be in form and substance satisfactory to the Agents;

(e)    Transferee shall have received confirmation that there is no pending or, to its knowledge, threatened action or proceeding affecting such proposed Originator before any Governmental Authority (I) that would reasonably be expected to have a Material Adverse Effect with respect to such additional Originator or (II) that purports to affect the legality, validity or enforceability of any Additional Originator Supplement or any of the transactions contemplated hereby;

(f)    subject to the limitations set forth in Section 12.22 of the Credit Agreement, the Transferee and the existing Originators, and the proposed Originator agree to any modified transaction terms which may be requested by the Agents as being necessary to maintain an implied

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rating equivalent to the implied rating of the facility evidenced by the Loan Documents immediately prior to the addition of the proposed Originator, as determined by the Agents in the exercise of their Reasonable Credit Judgment, including, but not limited to, direct or indirect changes to (i) the definitions of Advance Rate, Borrowing Base, Eligible Receivables, Eligible Unbilled Receivables Balance, Excess Concentration Amount, Net Receivables Balance, (ii) the definitions of Concentration Limit and Reserves after the addition of the proposed Originator, which shall be set and calculated consistent with such methodology prior to the addition of the proposed Originator, and (iii) the Dilution Ratio, Delinquency Ratio and Default Ratio set forth in Section 10.01(q) of the Credit Agreement after the addition of the proposed Originator, which shall be set and calculated consistent with the methodology used to set and calculate such ratios prior to the addition of the proposed Originator;

(g)    unless otherwise waived by the Collateral Agent, the proposed Originator has never been an Originator under this Agreement;

(h)    the proposed Originator shall have submitted to an audit and field examination reasonably related to the addition of such proposed Originator (separate from any conducted pursuant to Section 5.13) by Transferee (or its assigns) of the Collateral of such proposed Originator; and

(i)    the Termination Date shall not have occurred.

Section 9.13    Termination of Originators. (a) An Originator may submit a notice (“Originator Termination Notice”) to the Transferee and the Agents notifying them of its request to terminate its status as an Originator and specifying the date such termination is to take effect (the “Originator Termination Effective Date”).

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(b)    Such Originator Termination Notice shall be an “Orderly Originator Termination Notice” and the request to terminate such Originator shall be effective if the following conditions are satisfied:

(i)    the applicable Originator Termination Effective Date is at least 30 days after the date of such Originator Termination Notice (or such earlier date to which the Collateral Agent shall reasonably consent);

(ii)    no Unmatured Termination Event, Termination Event, Default or Event of Default shall have occurred and be continuing at the time of, or will occur and be continuing after giving effect to, the termination of such Originator;

(iii)    such Originator shall have (x) established new lockboxes and deposit accounts for the collection of its Receivables on and after the applicable Originator Termination Effective Date, (y) instructed all Obligors with respect to the Receivables of such Originator to make payments to such new lockboxes and deposit accounts on and after the applicable Originator Termination Effective Date and (z) instructed all Obligors not to, on or after the applicable Originator Termination Effective Date, make any payments with respect to such Receivables to the Lockboxes or Collection Accounts;

(iv)    a certificate has been delivered to the Agents by an Authorized Officer of such Originator and an Authorized Officer of the Transferee certifying the statements in clauses (b)(ii) and (b)(iii) above;

(v)    subject to the limitations set forth in Section 12.22 of the Credit Agreement, the Transferee and the remaining Originators agree to any modified transaction terms which may be requested by the Agents as being necessary to maintain an implied rating equivalent to the implied rating of the facility evidenced by the Loan Documents immediately prior to the termination of such Originator, as determined by the Agents in the exercise of their Reasonable Credit Judgment, including, but not limited to, direct or indirect changes to (i) the definitions of Advance Rate, Borrowing Base, Eligible Receivables, Eligible Unbilled Receivables Balance, Excess Concentration Amount, Net Receivables Balance, (ii) the definitions of Concentration Limit and Reserves after the termination of such Originator, which shall be set and calculated consistent with such methodology prior to the termination of such Originator, and (iii) the Dilution Ratio, Delinquency Ratio and Default Ratio set forth in Section 10.01(q) of the Credit Agreement after the termination of such Originator, which shall be set and calculated consistent with the methodology used to set and calculate such ratios prior to the termination of such Originator;

(vi)    the Servicer shall have delivered (i) a pro forma Borrowing Base Report as of the Calculation Date most recently reported immediately prior to the applicable Originator Termination Effective Date or (ii) if an Enhanced Reporting Event shall be continuing at such time, a pro forma Borrowing Base Report as of the Friday for the calendar week immediately prior to the applicable Originator Termination Effective Date, in either case, showing that Availability is at least 15% after giving effect to such termination and excluding all Transferred Receivables originated by the Originator to be terminated; and

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(vii)    if the Originator to be terminated is the Servicer, the Agents shall have approved the successor Servicer.

(c)    Such Originator Termination Notice shall be an “Immediate Originator Termination Notice” if the applicable Originator Termination Effective Date designated therein is less than 30 days after the date of such Originator Termination Notice without the consent of the Collateral Agent.

Section 9.14    Releases. On the Termination Date, this Agreement and all obligations of the parties (other than those expressly stated to survive such termination) hereunder shall terminate, without delivery of any instrument or performance of any act by any party, and all rights to Receivables originated thereafter shall cease to be acquired by the Transferee and shall belong to the Originators. At the sole expense of any Originator following any such termination, the Transferee shall execute and deliver, and cause the Collateral Agent to execute and deliver, to such Originator such documents as such Originator shall reasonably request to evidence such termination.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

Basic Energy Receivables, LLC

By: /s/Xxxx Xxxxxx    

Name: Xxxx Xxxxxx

Title: Senior Vice President, Chief Financial Officer, Treasurer and Secretary

Receivables Transfer Agreement

Basic Energy Services, L.P.

By: Basic Energy Services GP, LLC, its General Partner

By: Basic Energy Services, Inc., its Sole Member

By: /s/Xxxx Xxxxxx    

Name: Xxxx Xxxxxx

Title: Senior Vice President, Chief Financial Officer, Treasurer and Secretary

Receivables Transfer Agreement

ACKNOWLEDGED AND AGREED:

BER Holdco, LLC

By: /s/Xxxx Xxxxxx    

Name: Xxxx Xxxxxx

Title: Vice President, Secretary and Treasurer

Receivables Transfer Agreement

Exhibit I

Form of Additional Originator Supplement

SUPPLEMENT NO. [●] (this “Supplement”) dated as of [●], 20[●][●] to the Receivables Transfer Agreement dated as of September 29, 2017 (the “Receivables Transfer Agreement”), among BASIC ENERGY SERVICES, L.P., a Delaware limited partnership (“Initial Originator”) and BASIC ENERGY RECEIVABLES, LLC, a Delaware limited liability company (the “Transferee”).

A.    Reference is made to the Credit and Security Agreement dated as of September 29, 2017 (as amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”) among Transferee as the Borrower, Initial Originator as the Servicer, BASIC ENERGY SERVICES, INC. (“Parent”) as the Performance Guarantor, the Lenders party thereto from time to time and UBS AG, STAMFORD BRANCH, as administrative agent and collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties (as defined therein).

B.    Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Receivables Transfer Agreement.

C.    Section 9.12 of the Receivables Transfer Agreement provides that additional Wholly Owned Subsidiaries of Parent may become Originators under the Receivables Transfer Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “New Originator”) is executing this Supplement in accordance with the requirements of the Receivables Transfer Agreement and the Credit Agreement to become an Originator.

Accordingly, the Administrative Agent and the New Originator agree as follows:

SECTION 1. In accordance with Section 9.12 of the Receivables Transfer Agreement, the New Originator by its signature below becomes an Originator under the Receivables Transfer Agreement with the same force and effect as if originally named therein as an Originator and the New Originator hereby (a) agrees to all the terms and provisions of the Receivables Transfer Agreement applicable to it as an Originator thereunder and (b) represents and warrants that the representations and warranties made by it as an Originator thereunder are true and correct on and as of the date hereof. Each reference to an “Originator” in the Receivables Transfer Agreement shall be deemed to include the New Originator. The Receivables Transfer Agreement is hereby incorporated herein by reference.

SECTION 2. The New Originator represents and warrants to the Transferee and the Collateral Agent that all of the conditions set forth in Section 9.12 of the Receivables Transfer Agreement that are required in order for the New Originator to become an Originator have been satisfied.

SECTION 3. The New Originator shall deliver supplements to Exhibits II, III and VI to the Receivables Transfer Agreement concurrently with delivery of this Supplement.

SECTION 4. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed signature page to this Supplement by

Receivables Transfer Agreement

facsimile or electronic transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.

SECTION 5. Except as expressly supplemented hereby, the Receivables Transfer Agreement shall remain in full force and effect.

SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

[Signature Pages Follow]

Receivables Transfer Agreement

IN WITNESS WHEREOF, the New Originator and the Transferee have duly executed this Supplement to the Receivables Transfer Agreement as of the day and year first above written.

[NAME OF NEW ORIGINATOR]

by

Name:

Title:

BASIC ENERGY RECEIVABLES, LLC

by

Name:

Title:

[Signature Page to Receivables Transfer Supplement]

Consented to by:

UBS AG, STAMFORD BRANCH, as Collateral Agent,

by

Name:

Title:

by

Name:

Title:

[Signature Page to Receivables Transfer Supplement]

Exhibit II

Jurisdiction of Organization; Organizational Identification Number; Principal Place of Business; Other Places of Business; Federal Employer Identification Number; Other Names; Other Security Interests Granted

Originator	Jurisdiction & Type of Organization	Organizational ID #	Federal Tax ID # (FEIN)	Chief Executive Office, Sole Place of Business, or Principal Residence
Basic Energy Services, L.P.	Delaware limited partnership	2307778	00-0000000	000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, XX 00000

Exhibit III

Information Regarding Collection Accounts

Exhibit IV

Credit and Collection Policy

Exhibit V

Form of Transfer Report

Basic Energy Receivables, LLC,
as Transferee
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000

Attention:

The undersigned hereby certifies that:

1. I am a Financial Officer of the Originator (as defined below).

2. In accordance with Section 2.02(b) of the Receivables Transfer Agreement dated as of [______________], 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Receivables Transfer Agreement”), among BASIC ENERGY SERVICES, L.P. (the “Initial Originator” and together with any other Wholly Owned Subsidiary of BASIC ENERGY SERVICES, INC. that becomes an Originator pursuant to the terms of the Receivables Transfer Agreement, each an “Originator” and collectively, the “Originators”) and BASIC ENERGY RECEIVABLES, LLC (the “Transferee”), the information set forth in Annex A attached hereto with respect to the Transferred Receivables sold or contributed by Originator to Transferee during the Calculation Period ended ____________ is true and accurate in all material respects as of such date. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Receivables Transfer Agreement.

[Signature page follows]

V-1

IN WITNESS WHEREOF, the undersigned has caused this Transfer Report to be duly executed as of the date first written above.

BASIC ENERGY SERVICES, L.P.

By: Basic Energy Services GP, LLC, its sole general partner

By:    Basic Energy Services, Inc., its sole member

By:         Name:         Title:

[Signature Page to Transfer Report]

Annex I

Transferred Receivables

See attached.

Exhibit VI

Notices

Party	Notice Information
Basic Energy Services, L.P.	000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxx, Xxxxx 76102 Attention: T.M. “Xxx” Patterson Telephone: (432) 620-5500 Telecopier: (432) 620-5501 Electronic Mail: Xxx.Xxxxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
Basic Energy Receivables, LLC	000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxx, Xxxxx 76102 Attention: T.M. “Xxx” Patterson Telephone: (432) 620-5500 Telecopier: (432) 620-5501 Electronic Mail: Xxx.Xxxxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
BER Holdco, LLC	000 Xxxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxx, Xxxxx 76102 Attention: T.M. “Xxx” Patterson Telephone: (432) 620-5500 Telecopier: (432) 620-5501 Electronic Mail: Xxx.Xxxxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx

SCHEDULE 2.01

Initial Contributed Receivables

See attached.

SCHEDULE 3.10

ERISA

None.