TO
MISLEAD OTHERS AS TO THE IDENTITY WITH WHICH SUCH OTHER PARTY IS TRANSACTING
BUSINESS, OR (B) TO SUGGEST THAT BORROWER OR ANY PRINCIPAL, AS THE CASE MAY BE,
IS RESPONSIBLE FOR THE DEBTS OF ANY THIRD PARTY (INCLUDING ANY MEMBER, GENERAL
PARTNER, PRINCIPAL OR AFFILIATE OF ANY BORROWER ENTITY, OR OF ANY PRINCIPAL, AS
THE CASE MAY BE, OR ANY MEMBER, GENERAL PARTNER, PRINCIPAL OR AFFILIATE
THEREOF);
(XVII)
FAIL TO ENDEAVOR TO MAINTAIN ADEQUATE CAPITAL FOR
THE NORMAL OBLIGATIONS REASONABLY FORESEEABLE IN A BUSINESS OF ITS SIZE AND
CHARACTER AND IN LIGHT OF ITS CONTEMPLATED BUSINESS OPERATIONS; PROVIDED,
HOWEVER, THE FOREGOING SHALL NOT REQUIRE ANY PARTNER IN A BORROWER ENTITY TO
MAKE ANY CAPITAL CONTRIBUTIONS TO SUCH BORROWER ENTITY;
(XVIII)
SHARE ANY COMMON LOGO WITH OR HOLD ITSELF OUT AS OR BE
CONSIDERED AS A DEPARTMENT OR DIVISION OF (A) ANY GENERAL PARTNER, PRINCIPAL,
MEMBER OR AFFILIATE OF ANY BORROWER ENTITY OR OF ANY PRINCIPAL, AS THE CASE
MAY BE, (B) ANY AFFILIATE OF A GENERAL PARTNER, PRINCIPAL OR MEMBER OF ANY
BORROWER ENTITY OR OF ANY PRINCIPAL, AS THE CASE MAY BE, OR (C) ANY OTHER
PERSON;
(XIX)
FAIL TO ALLOCATE FAIRLY AND REASONABLY ANY
OVERHEAD EXPENSES THAT ARE SHARED WITH AN AFFILIATE, INCLUDING PAYING FOR OFFICE
SPACE AND SERVICES PERFORMED BY ANY EMPLOYEE OF AN AFFILIATE;
(XX)
PLEDGE ITS ASSETS FOR THE BENEFIT OF ANY OTHER
PERSON, AND WITH RESPECT TO BORROWER, OTHER THAN WITH RESPECT TO THE LOAN;
(XXI)
[INTENTIONALLY OMITTED];
77
(XXII)
FAIL TO PROVIDE IN ITS (I) LIMITED LIABILITY
COMPANY AGREEMENT, IF IT IS A LIMITED LIABILITY COMPANY, (II) LIMITED
PARTNERSHIP AGREEMENT, IF IT IS A LIMITED PARTNERSHIP OR (III) CERTIFICATE OF
INCORPORATION, IF IT IS A CORPORATION, THAT FOR SO LONG AS THE LOAN IS
OUTSTANDING PURSUANT TO THE NOTE, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
IT SHALL NOT FILE OR CONSENT TO THE FILING OF ANY PETITION, EITHER VOLUNTARY OR
INVOLUNTARY, TO TAKE ADVANTAGE OF ANY APPLICABLE INSOLVENCY, BANKRUPTCY,
LIQUIDATION OR REORGANIZATION STATUTE, OR MAKE AN ASSIGNMENT FOR THE BENEFIT OF
CREDITORS WITHOUT THE AFFIRMATIVE VOTE OF THE INDEPENDENT DIRECTOR AND OF ALL
OTHER GENERAL PARTNERS/MANAGING MEMBERS/DIRECTORS;
(XXIII)
FAIL TO HOLD ITS ASSETS IN ITS OWN NAME;
(XXIV)
IF ANY BORROWER ENTITY OR PRINCIPAL IS A CORPORATION,
FAIL TO CONSIDER THE INTERESTS OF SUCH CORPORATION'S CREDITORS IN CONNECTION
WITH ALL CORPORATE ACTIONS TO THE EXTENT PERMITTED BY APPLICABLE LAW;
(XXV)
HAVE ANY OF ITS OBLIGATIONS GUARANTEED BY AN
AFFILIATE, EXCEPT IN CONNECTION WITH THE LOAN; AND
(XXVI)
VIOLATE OR CAUSE TO BE VIOLATED THE ASSUMPTIONS MADE
WITH RESPECT TO THE BORROWER ENTITIES AND THEIR RESPECTIVE PRINCIPALS IN THE
INSOLVENCY OPINION.
(B)
BORROWER COVENANTS AND AGREES THAT, IF ANY
BORROWER ENTITY IS A SINGLE MEMBER LIMITED LIABILITY COMPANY THAT COMPLIES WITH
THE REQUIREMENTS OF SECTION 4.1.35(D) BELOW, ITS ORGANIZATIONAL DOCUMENTS SHALL
PROVIDE THAT SUCH BORROWER ENTITY SHALL NOT, AND IF ANY BORROWER ENTITY IS NOT A
SINGLE MEMBER LIMITED LIABILITY COMPANY THAT COMPLIES WITH THE REQUIREMENTS OF
SECTION 4.1.35(D) BELOW, THE