PERSON TO
DO BUSINESS, EACH DATED A RECENT DATE PRIOR TO THE CLOSING DATE;
(II)
RESOLUTIONS OF THE TRUSTEES OF CUSTOMER APPROVING AND AUTHORIZING
THE SALE OF THE WAREHOUSE ASSETS AND THE INCURRING OF OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS, AND THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH CUSTOMER IS A PARTY,
CERTIFIED AS OF THE CLOSING DATE BY
42
A MANAGER OR THE SECRETARY OF CUSTOMER AS BEING IN FULL FORCE AND EFFECT WITHOUT
MODIFICATION OR AMENDMENT;
(III)
SIGNATURE AND INCUMBENCY CERTIFICATES OF CUSTOMER'S OFFICERS
EXECUTING THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS TO WHICH PERSON IS
A PARTY;
(IV)
EXECUTED ORIGINALS OF THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS; AND
(V)
SUCH OTHER DOCUMENTS AS BUYER MAY REASONABLY REQUEST.
(B)
OPINIONS OF CUSTOMER'S COUNSEL.
BUYER AND ITS COUNSEL SHALL HAVE
RECEIVED ORIGINALLY EXECUTED COPIES OF ONE OR MORE FAVORABLE WRITTEN OPINIONS OF
HOGAN & HARTSON L.L.P., COUNSEL FOR CUSTOMER, ADDRESSED TO BUYER, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO BUYER AND ITS COUNSEL, DATED AS OF THE
CLOSING DATE AND SETTING FORTH SUCH MATTERS AS BUYER AND ITS COUNSEL MAY
REASONABLY REQUEST.
(C)
NO MATERIAL ADVERSE CHANGE.
SINCE DECEMBER 31, 2003, NO MATERIAL
ADVERSE CHANGE (IN THE SOLE OPINION OF BUYER) SHALL HAVE OCCURRED.
(D)
REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS.
CUSTOMER SHALL HAVE DELIVERED TO BUYER AN OFFICERS' CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO BUYER, TO THE EFFECT THAT THE REPRESENTATIONS AND
WARRANTIES IN SECTION 3.1 HEREOF AND IN THE OTHER TRANSACTION DOCUMENTS ARE
TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS ON AND AS OF THE CLOSING
DATE TO THE SAME EXTENT AS THOUGH MADE ON AND AS OF THAT DATE, THAT NO
TERMINATION EVENT OR POTENTIAL TERMINATION EVENT HAS OCCURRED AND IS CONTINUING
AND THAT CUSTOMER SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL AGREEMENTS
AND SATISFIED ALL CONDITIONS THAT THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS PROVIDES SHALL BE PERFORMED OR SATISFIED BY CUSTOMER ON OR BEFORE THE
CLOSING DATE, EXCEPT AS OTHERWISE DISCLOSED TO AND AGREED TO IN WRITING BY
BUYER.
(E)
COMPLETION OF PROCEEDINGS.
ALL CORPORATE AND OTHER PROCEEDINGS
TAKEN OR TO BE TAKEN IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND
ALL DOCUMENTS INCIDENTAL THERETO NOT PREVIOUSLY FOUND ACCEPTABLE BY BUYER AND
ITS COUNSEL SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO BUYER AND SUCH
COUNSEL, AND BUYER AND SUCH COUNSEL SHALL HAVE RECEIVED ALL SUCH COUNTERPART
ORIGINALS OR CERTIFIED COPIES OF SUCH DOCUMENTS AS BUYER MAY REASONABLY REQUEST.
(F)
WAREHOUSE ASSETS.
CUSTOMER SHALL HAVE TAKEN OR CAUSED TO BE
TAKEN ALL SUCH ACTIONS AS MAY BE NECESSARY (IN BUYER'S JUDGMENT) TO GIVE BUYER A
VALID AND PERFECTED FIRST PRIORITY INTEREST IN THE WAREHOUSE ASSETS, SUBJECT TO
NO ADVERSE CLAIMS.
SUCH ACTIONS SHALL INCLUDE, WITHOUT LIMITATION:
(I)
THE DELIVERY TO BUYER OF AN OMNIBUS ASSIGNMENT WITH RESPECT TO
THE RECEIVABLES, RELATED SECURITY AND OTHER WAREHOUSE ASSETS;
43
(II)
THE DELIVERY TO BUYER FOR FILING PURSUANT TO THIS AGREEMENT OF
FINANCING STATEMENTS