SHALL NOT IMPOSE
ANY DUTY UPON IT TO EXERCISE ANY SUCH POWERS.
BUYER SHALL BE ACCOUNTABLE ONLY
FOR AMOUNTS THAT IT ACTUALLY RECEIVES AS A RESULT OF THE EXERCISE OF SUCH
POWERS, AND NEITHER IT NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS
SHALL BE RESPONSIBLE TO SELLER FOR ANY ACT OR FAILURE TO ACT HEREUNDER, EXCEPT
FOR ITS OR THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10.
CONDITIONS PRECEDENT
A)
AS CONDITIONS PRECEDENT TO THE FIRST
TRANSACTION TO OCCUR ON OR AFTER THE EFFECTIVE DATE, BUYER SHALL HAVE COMPLETED
THE DUE DILIGENCE REVIEW PURSUANT TO SECTION 39, AND SUCH REVIEW SHALL BE
SATISFACTORY TO BUYER IN ITS SOLE DISCRETION.
BUYER SHALL HAVE RECEIVED ON OR
BEFORE THE DAY OF SUCH FIRST TRANSACTION THE FOLLOWING, IN FORM AND SUBSTANCE
SATISFACTORY TO BUYER AND DULY EXECUTED BY EACH PARTY THERETO:
(I)
THE PROGRAM DOCUMENTS DULY EXECUTED AND
DELIVERED BY THE PARTIES THERETO AND BEING IN FULL FORCE AND EFFECT, FREE OF ANY
MODIFICATION, BREACH OR WAIVER;
(II)
EVIDENCE THAT ALL OTHER ACTIONS NECESSARY
OR, IN THE OPINION OF BUYER, DESIRABLE TO PERFECT AND PROTECT BUYER'S INTEREST
IN THE PURCHASED ASSETS AND OTHER COLLATERAL HAVE BEEN TAKEN, INCLUDING, WITHOUT
LIMITATION, DULY EXECUTED AND FILED UNIFORM COMMERCIAL CODE FINANCING STATEMENTS
ON FORM UCC-1;
(III)
A CERTIFIED COPY OF SELLER'S LIMITED
LIABILITY COMPANY RESOLUTIONS AND GUARANTOR'S CORPORATE RESOLUTIONS, APPROVING
THE PROGRAM DOCUMENTS AND TRANSACTIONS THEREUNDER (EITHER SPECIFICALLY OR BY
GENERAL RESOLUTION), AND ALL DOCUMENTS EVIDENCING OTHER NECESSARY LIMITED
LIABILITY COMPANY OR CORPORATE ACTION OR GOVERNMENTAL APPROVALS AS MAY BE
REQUIRED IN CONNECTION WITH THE PROGRAM DOCUMENTS;
(IV)
AN INCUMBENCY CERTIFICATE OF THE SECRETARIES
OF SELLER, CERTIFYING THE NAMES, TRUE SIGNATURES AND TITLES OF SELLER'S
REPRESENTATIVES DULY AUTHORIZED TO REQUEST TRANSACTIONS HEREUNDER AND TO EXECUTE
THE PROGRAM DOCUMENTS AND THE OTHER DOCUMENTS TO BE DELIVERED THEREUNDER;
(V)
OPINIONS OF SELLER'S COUNSEL AS TO SUCH
MATTERS AS BUYER MAY REASONABLY REQUEST (INCLUDING, WITHOUT LIMITATION,
PERFECTED SECURITY INTEREST IN THE COLLATERAL) AND IN FORM AND SUBSTANCE
ACCEPTABLE TO BUYER;
(VI)
A COPY OF THE UNDERWRITING GUIDELINES
CERTIFIED BY AN OFFICER OF SELLER;
(VII)
EVIDENCE OF ESTABLISHMENT OF THE COLLECTION
ACCOUNT;
(VIII)
THE SPIRIT GUARANTY; AND
(IX)
ANY OTHER DOCUMENTS REASONABLY REQUESTED BY
BUYER.
22
B)
THE OBLIGATION OF BUYER TO ENTER INTO
EACH TRANSACTION (INCLUDING THE INITIAL TRANSACTION) PURSUANT TO THIS AGREEMENT
IS SUBJECT TO THE FOLLOWING CONDITIONS PRECEDENT:
(I)
BUYER OR ITS DESIGNEE SHALL HAVE
RECEIVED ON OR BEFORE THE DAY OF A TRANSACTION WITH RESPECT TO SUCH PURCHASED
ASSETS THE FOLLOWING, IN FORM AND SUBSTANCE SATISFACTORY TO BUYER AND (IF
APPLICABLE) DULY EXECUTED:
(A)
TRANSACTION NOTICE AND ASSET SCHEDULE DELIVERED
PURSUANT TO SECTION 4(A);
(B)
THE TRUST RECEIPT WITH RESPECT TO SUCH
PURCHASED ASSETS, WITH THE ASSET SCHEDULE ATTACHED; AND
(C)
SUCH CERTIFICATES, CUSTOMARY OPINIONS OF
COUNSEL OR OTHER DOCUMENTS AS BUYER MAY REASONABLY REQUEST; PROVIDED, THAT SUCH
OPINIONS OF COUNSEL SHALL NOT BE REQUIRED ROUTINELY IN CONNECTION WITH EACH
TRANSACTION BUT SHALL ONLY BE REQUIRED FROM TIME TO TIME AS DEEMED NECESSARY