OR THE COMPLIANCE BY SPIRIT FINANCE WITH, THIS
AGREEMENT OR THE CONSUMMATION OF THE TRANSACTIONS OF SPIRIT FINANCE CONTEMPLATED
BY THIS AGREEMENT, EXCEPT FOR ANY CONSENT, APPROVAL, AUTHORIZATION OR ORDER THAT
HAS BEEN OBTAINED OR THAT IF NOT OBTAINED WOULD NOT HAVE A MATERIAL AND ADVERSE
AFFECT ON THE ABILITY OF SPIRIT FINANCE TO PERFORM ITS OBLIGATIONS HEREUNDER;
(VIII)
EACH OFFICER AND EMPLOYEE OF SPIRIT FINANCE THAT HAS
RESPONSIBILITIES CONCERNING THE MANAGEMENT, SERVICING AND ADMINISTRATION OF
MORTGAGED PROPERTIES, LEASES AND MORTGAGE LOANS IS COVERED BY ERRORS AND
OMISSIONS INSURANCE AND THE FIDELITY BOND AS AND TO THE EXTENT REQUIRED BY
SECTION 3.07(C).
(B)
THE REPRESENTATIONS AND WARRANTIES OF SPIRIT FINANCE SET FORTH IN
SECTION 2.01(A) SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND
SHALL INURE TO THE BENEFIT OF THE PERSONS TO WHOM AND FOR WHOSE BENEFIT THEY
WERE MADE UNTIL ALL AMOUNTS OWED TO THE NOTEHOLDERS AND THE INSURERS UNDER OR IN
CONNECTION WITH THIS AGREEMENT, THE INDENTURE, THE NOTES AND THE INSURANCE
AGREEMENT HAVE BEEN INDEFEASIBLY PAID IN FULL.
UPON DISCOVERY BY ANY PARTY
HERETO OF ANY BREACH OF ANY OF THE FOREGOING REPRESENTATIONS AND WARRANTIES, THE
PARTY DISCOVERING SUCH BREACH SHALL GIVE PROMPT WRITTEN NOTICE TO THE OTHER
PARTIES.
(C)
ANY SUCCESSOR PROPERTY MANAGER OR SPECIAL SERVICER SHALL BE DEEMED
TO HAVE MADE, AS OF THE DATE OF ITS SUCCESSION, EACH OF THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 2.01(A), SUBJECT TO SUCH APPROPRIATE
MODIFICATIONS TO THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 2.01(A)(I)
TO ACCURATELY REFLECT SUCH SUCCESSOR'S JURISDICTION OF ORGANIZATION AND WHETHER
IT IS A CORPORATION, PARTNERSHIP, BANK, ASSOCIATION OR OTHER TYPE OF
ORGANIZATION.
(D)
THE BACK-UP MANAGER REPRESENTS AND WARRANTS TO THE OTHER PARTIES
HERETO, AND FOR THE BENEFIT OF THE ISSUER, THE INDENTURE TRUSTEE ON BEHALF OF
THE NOTEHOLDERS AND THE INSURERS, AS OF EACH SERIES CLOSING DATE:
(I)
THE BACK-UP MANAGER IS A CORPORATION DULY ORGANIZED, VALIDLY
EXISTING, AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN
COMPLIANCE WITH THE LAWS OF EACH STATE (WITHIN THE UNITED STATES OF AMERICA) IN
WHICH ANY MORTGAGED PROPERTY IS LOCATED TO THE EXTENT NECESSARY TO ITS
PERFORMANCE UNDER THIS AGREEMENT;
31
(II)
THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE BACK-UP
MANAGER, AND THE PERFORMANCE AND COMPLIANCE WITH THE TERMS OF THIS AGREEMENT BY
THE BACK-UP MANAGER, DO NOT VIOLATE ITS ORGANIZATIONAL DOCUMENTS OR CONSTITUTE
AN EVENT THAT, WITH NOTICE OR LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE A DEFAULT
UNDER, OR RESULT IN THE BREACH OF, ANY MATERIAL AGREEMENT OR OTHER INSTRUMENT TO
WHICH IT IS A PARTY OR BY WHICH IT IS BOUND;
(III)
THE BACK-UP MANAGER HAS THE CORPORATE POWER AND AUTHORITY TO
ENTER INTO AND CONSUMMATE ALL TRANSACTIONS TO BE PERFORMED BY IT CONTEMPLATED BY
THIS AGREEMENT, HAS DULY AUTHORIZED THE EXECUTION, DELIVERY AND PERFORMANCE BY
IT OF THIS AGREEMENT, AND HAS DULY EXECUTED AND DELIVERED THIS AGREEMENT;
(IV)
THIS AGREEMENT, ASSUMING DUE AUTHORIZATION, EXECUTION AND DELIVERY
BY EACH