OF THE
BOARD WITHOUT THE VOTE OF EACH INDEPENDENT DIRECTOR.
(BB)
IN THE EVENT BORROWER IS A DELAWARE LIMITED LIABILITY COMPANY THAT
DOES NOT HAVE A MANAGING MEMBER WHICH COMPLIES WITH THE REQUIREMENTS FOR A
PRINCIPAL UNDER THIS SECTION 4.1.35, THE LIMITED LIABILITY COMPANY AGREEMENT OF
BORROWER (THE "LLC
64
AGREEMENT") SHALL PROVIDE THAT (A) UPON THE OCCURRENCE OF ANY EVENT THAT CAUSES
THE LAST REMAINING MEMBER OF BORROWER ("MEMBER") TO CEASE TO BE THE MEMBER OF
BORROWER (OTHER THAN (1) UPON AN ASSIGNMENT BY MEMBER OF ALL OF ITS LIMITED
LIABILITY COMPANY INTEREST IN BORROWER AND THE ADMISSION OF THE TRANSFEREE IN
ACCORDANCE WITH THE LOAN DOCUMENTS AND THE LLC AGREEMENT, OR (2) THE RESIGNATION
OF MEMBER AND THE ADMISSION OF AN ADDITIONAL MEMBER OF BORROWER IN ACCORDANCE
WITH THE TERMS OF THE LOAN DOCUMENTS AND THE LLC AGREEMENT), ANY PERSON ACTING
AS INDEPENDENT DIRECTOR OF BORROWER SHALL, WITHOUT ANY ACTION OF ANY OTHER
PERSON AND SIMULTANEOUSLY WITH THE MEMBER CEASING TO BE THE MEMBER OF BORROWER,
AUTOMATICALLY BE ADMITTED TO BORROWER ("SPECIAL MEMBER") AND SHALL CONTINUE
BORROWER WITHOUT DISSOLUTION AND (B) SPECIAL MEMBER MAY NOT RESIGN FROM BORROWER
OR TRANSFER ITS RIGHTS AS SPECIAL MEMBER UNLESS (1) A SUCCESSOR SPECIAL MEMBER
HAS BEEN ADMITTED TO BORROWER AS SPECIAL MEMBER IN ACCORDANCE WITH REQUIREMENTS
OF DELAWARE LAW AND (2) SUCH SUCCESSOR SPECIAL MEMBER HAS ALSO ACCEPTED ITS
APPOINTMENT AS AN INDEPENDENT DIRECTOR.
THE LLC AGREEMENT SHALL FURTHER PROVIDE
THAT (V) SPECIAL MEMBER SHALL AUTOMATICALLY CEASE TO BE A MEMBER OF BORROWER
UPON THE ADMISSION TO BORROWER OF A SUBSTITUTE MEMBER, (W) SPECIAL MEMBER SHALL
BE A MEMBER OF BORROWER THAT HAS NO INTEREST IN THE PROFITS, LOSSES AND CAPITAL
OF BORROWER AND HAS NO RIGHT TO RECEIVE ANY DISTRIBUTIONS OF BORROWER ASSETS,
(X) PURSUANT TO SECTION 18-301 OF THE DELAWARE LIMITED LIABILITY COMPANY ACT
(THE "ACT"), SPECIAL MEMBER SHALL NOT BE REQUIRED TO MAKE ANY CAPITAL
CONTRIBUTIONS TO BORROWER AND SHALL NOT RECEIVE A LIMITED LIABILITY COMPANY
INTEREST IN BORROWER, (Y) SPECIAL MEMBER, IN ITS CAPACITY AS SPECIAL MEMBER, MAY
NOT BIND BORROWER AND (Z) EXCEPT AS REQUIRED BY ANY MANDATORY PROVISION OF THE
ACT, SPECIAL MEMBER, IN ITS CAPACITY AS SPECIAL MEMBER, SHALL HAVE NO RIGHT TO
VOTE ON, APPROVE OR OTHERWISE CONSENT TO ANY ACTION BY, OR MATTER RELATING TO,
BORROWER, INCLUDING, WITHOUT LIMITATION, THE MERGER, CONSOLIDATION OR CONVERSION
OF BORROWER; PROVIDED, HOWEVER, SUCH PROHIBITION SHALL NOT LIMIT THE OBLIGATIONS
OF SPECIAL MEMBER, IN ITS CAPACITY AS INDEPENDENT DIRECTOR, TO VOTE ON SUCH
MATTERS REQUIRED BY THE LLC AGREEMENT.
IN ORDER TO IMPLEMENT THE ADMISSION TO
BORROWER OF SPECIAL MEMBER, SPECIAL MEMBER SHALL EXECUTE A COUNTERPART TO THE
LLC AGREEMENT.
PRIOR TO ITS ADMISSION TO BORROWER AS SPECIAL MEMBER, SPECIAL
MEMBER SHALL NOT BE A MEMBER OF BORROWER.
Upon the occurrence of any event that causes the Member to cease to be a member
of Borrower, to the fullest extent permitted by law, the personal representative
of Member shall, within ninety (90) days after the occurrence