THE INSOLVENCY OPINION SHALL BE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS. IN CONNECTION WITH THE FOREGOING, BORROWER HEREBY
COVENANTS AND AGREES THAT IT WILL COMPLY WITH, OR CAUSE THE COMPLIANCE WITH, (I)
ALL OF THE FACTS AND ASSUMPTIONS (WHETHER REGARDING BORROWER OR ANY OTHER
PERSON) SET FORTH IN THE INSOLVENCY OPINION, (II) ALL THE REPRESENTATIONS,
WARRANTIES AND COVENANTS IN THIS SECTION 3.1.24, AND (III) ALL THE
ORGANIZATIONAL DOCUMENTS OF BORROWER AND ANY SPC PARTY.
(S)
BORROWER WILL NOT PERMIT ANY AFFILIATE OR CONSTITUENT PARTY
INDEPENDENT ACCESS TO ITS BANK ACCOUNTS, OTHER THAN MANAGER (INCLUDING ITS
AUTHORIZED EMPLOYEES) IN ACCORDANCE WITH THE MANAGEMENT AGREEMENT.
(T)
BORROWER SHALL PAY THE SALARIES OF ITS OWN EMPLOYEES (IF ANY)
FROM ITS OWN FUNDS AND MAINTAIN A SUFFICIENT NUMBER OF EMPLOYEES (IF ANY) IN
LIGHT OF ITS CONTEMPLATED BUSINESS OPERATIONS.
(U)
BORROWER SHALL COMPENSATE EACH OF ITS CONSULTANTS AND AGENTS FROM
ITS FUNDS FOR SERVICES PROVIDED TO IT AND PAY FROM ITS OWN ASSETS ALL
OBLIGATIONS OF ANY KIND INCURRED.
35
(V)
BORROWER SHALL ALLOCATE FAIRLY AND REASONABLY ANY OVERHEAD
EXPENSES THAT ARE SHARED WITH ANY AFFILIATE, INCLUDING FOR SHARED OFFICE SPACE
AND FOR SERVICES PERFORMED BY ANY EMPLOYEE OF AN AFFILIATE.
(W)
BORROWER SHALL NOT PLEDGE ITS ASSETS FOR THE BENEFIT OF ANY OTHER
PERSON (OTHER THAN (I) TO LENDER WITH RESPECT TO THE LOAN AND (II) EQUIPMENT
SECURED BY PERMITTED EQUIPMENT FINANCINGS OR EQUIPMENT LEASES) AND BORROWER
SHALL NOT ENGAGE IN ANY SALE OR TRANSFER OF ITS ASSETS OUTSIDE THE ORDINARY
COURSE OF ITS BUSINESS OR IN VIOLATION OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(X)
BORROWER SHALL NOT BUY OR HOLD EVIDENCE OF INDEBTEDNESS ISSUED BY
ANY OTHER PERSON (OTHER THAN CASH AND INVESTMENT-GRADE SECURITIES).
(Y)
BORROWER SHALL NOT FORM, ACQUIRE OR HOLD ANY SUBSIDIARY OR OWN ANY
EQUITY INTEREST IN ANY OTHER ENTITY.
(Z)
NEITHER BORROWER NOR ANY SPC PARTY SHALL, WITHOUT THE AFFIRMATIVE
VOTE OF THE MANAGING MEMBER AND THE BOARD OF DIRECTORS OF BORROWER OR OF SUCH
SPC PARTY, AS APPLICABLE, INCLUDING BOTH INDEPENDENT DIRECTORS OF BORROWER OR OF
SUCH SPC PARTY, AS APPLICABLE:
(I)
FILE OR CONSENT TO THE FILING OF ANY BANKRUPTCY, INSOLVENCY OR
REORGANIZATION CASE OR PROCEEDING; INSTITUTE ANY PROCEEDINGS UNDER ANY
APPLICABLE INSOLVENCY LAW OR OTHERWISE SEEK RELIEF UNDER ANY LAWS RELATING TO
THE RELIEF FROM DEBTS OR THE PROTECTION OF DEBTORS GENERALLY, ON BEHALF OF
BORROWER OR OF SPC PARTY;
(II)
SEEK OR CONSENT TO THE APPOINTMENT OF A RECEIVER, LIQUIDATOR,
ASSIGNEE, TRUSTEE, SEQUESTRATOR, CUSTODIAN OR ANY SIMILAR OFFICIAL FOR SPC PARTY
OR BORROWER OR A SUBSTANTIAL PORTION OF EITHER OF THEIR PROPERTIES;
(III)
MAKE ANY ASSIGNMENT FOR THE BENEFIT OF THE CREDITORS OF SPC PARTY
OR BORROWER; OR
(IV)
TAKE ANY ACTION IN FURTHERANCE OF ANY OF THE FOREGOING.
Notwithstanding anything to the contrary contained in this Agreement or any of
the other Loan Documents, each Borrower shall comply with all of the provisions
of this Section 3.1.24 with respect to all Persons other than its co-borrower as
contemplated by