would make any such
information inaccurate, incomplete or otherwise misleading in any material
respect or that otherwise has a Material Adverse Effect. To Borrower's Actual
Knowledge, Borrower has disclosed to Lender all material facts and has not
failed to disclose any material fact that could cause any Provided Information
or any representation or warranty made herein to be materially misleading.
4.1.33
Investment Company Act.
No Borrower Entity is (a) an "investment company" or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended; or (b) subject to any other federal or State law or regulation
which purports to restrict or regulate its ability to borrow money.
4.1.34
Principal Place of Business; State of Organization.
Each Borrower Entity's principal place of business as of the date hereof is the
address set forth in the introductory paragraph of this Agreement. Each Borrower
Entity is organized under the laws of the State of Delaware pursuant to a
Certificate of Limited Partnership or Certification of Formation filed with the
Secretary of State of the State of Delaware, and the organizational
identification number of each Borrower Entity is set forth opposite the name of
such Borrower Entity on Exhibit A annexed hereto.
4.1.35
Single Purpose Entity.
(A)
BORROWER REPRESENTS AND WARRANTS THAT IT
HAS NOT, AND THAT NO PRINCIPAL HAS, SINCE ITS DATE OF FORMATION, AND COVENANTS
AND AGREES THAT ITS ORGANIZATIONAL DOCUMENTS SHALL PROVIDE THAT IT SHALL NOT,
AND THAT THE ORGANIZATIONAL DOCUMENTS OF EACH PRINCIPAL SHALL PROVIDE THAT SUCH
PRINCIPAL SHALL NOT:
(I)
WITH RESPECT TO BORROWER, ENGAGE IN ANY
BUSINESS OR ACTIVITY OTHER THAN ACQUIRING, OWNING, HOLDING, MANAGING, OPERATING,
FINANCING, REFINANCING, ENCUMBERING, SELLING, EXCHANGING AND OTHERWISE DEALING
WITH AND DISPOSING OF ALL OR ANY PORTION OF THE COLLATERAL, AND ENTERING INTO
THE LOAN, AND ACTIVITIES INCIDENTAL THERETO, AND WITH RESPECT TO ANY PRINCIPAL,
ENGAGE IN ANY BUSINESS OR
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ACTIVITY OTHER THAN THE OWNERSHIP OF ITS INTEREST IN THE RELATED BORROWER
ENTITY, AND ACTIVITIES INCIDENTAL THERETO;
(II)
WITH RESPECT TO BORROWER, ACQUIRE OR OWN
ANY MATERIAL ASSETS OTHER THAN (I) THE COLLATERAL, AND (II) SUCH PERSONAL
PROPERTY AS MAY BE NECESSARY FOR, OR INCIDENTAL TO, THE OWNERSHIP OF THE
COLLATERAL, AND WITH RESPECT TO ANY PRINCIPAL, ACQUIRE OR OWN ANY MATERIAL ASSET
OTHER THAN ITS INTEREST IN THE RELATED BORROWER ENTITY;
(III)
MERGE INTO OR CONSOLIDATE WITH ANY PERSON OR
DISSOLVE, TERMINATE OR LIQUIDATE IN WHOLE OR IN PART, TRANSFER OR OTHERWISE
DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR CHANGE ITS LEGAL STRUCTURE,
OTHER THAN PURSUANT TO THE TERMS OF THE LOAN DOCUMENTS;
(IV)
WITH RESPECT TO ANY BORROWER ENTITY, (I) FAIL
TO OBSERVE ITS ORGANIZATIONAL FORMALITIES OR PRESERVE ITS EXISTENCE AS AN ENTITY
DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING (IF APPLICABLE) UNDER THE
LAWS OF THE JURISDICTION OF ITS ORGANIZATION OR FORMATION, OR (II) WITHOUT THE
PRIOR WRITTEN CONSENT OF LENDER, AMEND, MODIFY, TERMINATE OR FAIL TO COMPLY IN
ANY MATERIAL RESPECTS WITH THE PROVISIONS OF