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 AGREEMENTS 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 ISSUERS, 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;
32
(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 OF THE OTHER PARTIES HERETO, CONSTITUTES A