proceeds thereof shall be deposited into the Earnout Reserve Account, and
thereafter be subject to all provisions applicable to such Account. Lender shall
be entitled to charge Borrower a reasonable processing fee for administering and
reviewing any renewal, replacement or release of the Letter of Credit, which
Borrower is required to provide pursuant to this Loan Agreement.
ARTICLE 7
SINGLE PURPOSE ENTITY REQUIREMENTS
Section 7.01
Commitment to be a Single Purpose
Entity.
Borrower represents, warrants and covenants to Lender as follows:
(A)
BORROWER IS A SINGLE PURPOSE ENTITY AND
WILL CONTINUE TO BE A SINGLE PURPOSE ENTITY AT ALL TIMES UNTIL THE LOAN HAS BEEN
PAID IN FULL.
(B)
INTENTIONALLY DELETED.
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(C)
THE ORGANIZATIONAL CHART ATTACHED TO THIS
LOAN AGREEMENT IS TRUE, COMPLETE AND CORRECT.
(D)
ALL OF THE FACTUAL ASSUMPTIONS MADE IN THE
NONCONSOLIDATION LEGAL OPINION DELIVERED BY BORROWER'S COUNSEL TO LENDER, OF
EVEN DATE HEREWITH, ARE TRUE AND CORRECT IN ALL RESPECTS.
(E)
THE "SINGLE PURPOSE ENTITY" PROVISIONS
INCLUDED IN THE ORGANIZATIONAL DOCUMENTS OF BORROWER SHALL NOT, WITHOUT LENDER'S
PRIOR WRITTEN CONSENT, BE AMENDED, RESCINDED OR OTHERWISE REVOKED UNTIL THE LOAN
HAS BEEN PAID IN FULL, EXCEPT WITH RESPECT TO ANY AMENDMENTS OR MODIFICATIONS
MADE SOLELY TO REFLECT TRANSFERS THAT ARE EFFECTED IN ACCORDANCE WITH THE TERMS
OF THIS AGREEMENT.
(F)
INTENTIONALLY DELETED.
Section 7.02
Definition of Single Purpose Entity.
(A)
BORROWER CRITERIA.
WITH RESPECT TO
BORROWER, A "SINGLE PURPOSE ENTITY" MEANS A CORPORATION, LIMITED PARTNERSHIP OR
LIMITED LIABILITY COMPANY WHICH, AT ALL TIMES SINCE ITS FORMATION AND
THEREAFTER:
(I)
HAS NOT ENGAGED, AND SHALL NOT ENGAGE,
IN ANY BUSINESS OR ACTIVITY OTHER THAN WITH RESPECT TO BORROWER, THE
ACQUISITION, OWNERSHIP, OPERATION, AND DISPOSITION OF THE PROPERTY, AND
ACTIVITIES INCIDENTAL THERETO;
(II)
HAS NOT OWNED AND SHALL NOT, ACQUIRE OR
OWN, ANY ASSETS OTHER THAN WITH RESPECT TO BORROWER, THE PROPERTY AND SUCH
INCIDENTAL ASSETS OR PERSONAL PROPERTY AS MAY BE NECESSARY FOR THE OPERATION OF
THE PROPERTY;
(III)
IF SUCH ENTITY IS (A) A LIMITED LIABILITY
COMPANY (OTHER THAN A SINGLE MEMBER LIMITED LIABILITY COMPANY WHICH SATISFIES
THE REQUIREMENTS OF CLAUSE (IV) BELOW), HAS HAD AND SHALL HAVE AT LEAST ONE
MEMBER THAT SATISFIES THE REQUIREMENTS OF SECTION 7.02(B) BELOW, AND (B) A
LIMITED PARTNERSHIP, ALL OF ITS GENERAL PARTNERS HAVE SATISFIED AND SHALL
SATISFY THE REQUIREMENTS OF SECTION 7.02(B) BELOW;
(IV)
IF SUCH ENTITY IS A SINGLE MEMBER LIMITED
LIABILITY COMPANY, SUCH ENTITY SHALL BE FORMED AND ORGANIZED UNDER DELAWARE LAW
AND OTHERWISE COMPLY WITH ALL OTHER RATING AGENCY CRITERIA FOR SINGLE MEMBER
LIMITED LIABILITY COMPANIES (INCLUDING, WITHOUT LIMITATION, THE INCLUSION OF A
"SPRINGING MEMBER" AND DELIVERY OF DELAWARE SINGLE MEMBER LIABILITY COMPANY
OPINIONS REASONABLY ACCEPTABLE IN ALL RESPECTS TO LENDER AND TO THE RATING
AGENCIES);
(V)
INTENTIONALLY DELETED;
(VI)
HAS AND SHALL PRESERVE ITS EXISTENCE AS AN
ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING (IF APPLICABLE)
UNDER THE LAWS OF THE JURISDICTION OF ITS FORMATION OR ORGANIZATION;
37
(VII)
HAS NOT AND SHALL NOT MERGE OR CONSOLIDATE WITH
ANY OTHER