AS IF SUCH REPRESENTATION,
WARRANTY OR COVENANT WAS MADE DIRECTLY BY SUCH SPE COMPONENT ENTITY; (II) WILL
NOT ENGAGE IN ANY BUSINESS OR ACTIVITY OTHER THAN OWNING AN INTEREST IN
BORROWER; (III) WILL NOT ACQUIRE OR OWN ANY ASSETS OTHER THAN ITS PARTNERSHIP,
MEMBERSHIP, OR OTHER EQUITY INTEREST IN BORROWER; (IV) WILL NOT INCUR ANY DEBT,
SECURED OR UNSECURED, DIRECT OR CONTINGENT (INCLUDING GUARANTEEING ANY
OBLIGATION); AND (V) WILL CAUSE BORROWER TO COMPLY WITH THE PROVISIONS OF THIS
SECTION 6.1 AND SECTION 6.4.
PRIOR TO THE WITHDRAWAL OR THE DISASSOCIATION OF
ANY SPE COMPONENT ENTITY FROM BORROWER, BORROWER SHALL IMMEDIATELY APPOINT A NEW
GENERAL PARTNER OR MANAGING MEMBER WHOSE ARTICLES OF INCORPORATION (OR OTHER
APPLICABLE FORMATION AND ENTITY DOCUMENTATION) ARE SUBSTANTIALLY SIMILAR TO
THOSE OF SUCH SPE COMPONENT ENTITY AND, IF AN OPINION LETTER PERTAINING TO
SUBSTANTIVE CONSOLIDATION WAS REQUIRED AT CLOSING, DELIVER A NEW OPINION LETTER
ACCEPTABLE TO LENDER AND THE RATING AGENCIES WITH RESPECT TO THE NEW SPE
COMPONENT ENTITY AND ITS EQUITY OWNERS.
NOTWITHSTANDING THE FOREGOING, TO THE
EXTENT BORROWER IS A SINGLE MEMBER DELAWARE LIMITED LIABILITY COMPANY, SO LONG
AS BORROWER MAINTAINS SUCH FORMATION STATUS, NO SPE COMPONENT ENTITY SHALL BE
REQUIRED.
(C)
IN THE EVENT BORROWER IS A SINGLE MEMBER DELAWARE LIMITED
LIABILITY COMPANY, THE LIMITED LIABILITY COMPANY AGREEMENT OF BORROWER (THE "LLC
AGREEMENT") SHALL PROVIDE THAT (I) UPON THE OCCURRENCE OF ANY EVENT THAT CAUSES
THE SOLE MEMBER OF BORROWER ("MEMBER") TO CEASE TO BE THE MEMBER OF BORROWER
(OTHER THAN (A) 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 (B) 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 AS A MEMBER THEREOF ("SPECIAL MEMBER") AND
SHALL CONTINUE BORROWER WITHOUT DISSOLUTION AND (II) SPECIAL MEMBER MAY NOT
RESIGN FROM BORROWER OR TRANSFER ITS RIGHTS AS SPECIAL MEMBER UNLESS (A) A
SUCCESSOR SPECIAL MEMBER HAS BEEN ADMITTED TO BORROWER AS SPECIAL MEMBER IN
ACCORDANCE WITH REQUIREMENTS OF DELAWARE LAW AND (B) SUCH SUCCESSOR SPECIAL
MEMBER HAS ALSO ACCEPTED ITS APPOINTMENT AS AN INDEPENDENT DIRECTOR.
THE LLC
AGREEMENT SHALL FURTHER PROVIDE THAT (I) SPECIAL MEMBER SHALL AUTOMATICALLY
CEASE TO BE A MEMBER OF BORROWER UPON THE ADMISSION TO BORROWER OF A SUBSTITUTE
MEMBER, (II) 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, (III) 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