PROPERTY AND BORROWER;
(XVII)
HAS HELD AND WILL HOLD ITS ASSETS IN ITS OWN NAME;
(XVIII)
HAS CONDUCTED AND WILL CONDUCT ITS BUSINESS IN ITS NAME OR IN A
NAME FRANCHISED OR LICENSED TO IT BY AN ENTITY OTHER THAN AN AFFILIATE OF
BORROWER;
(XIX)
HAS MAINTAINED AND WILL MAINTAIN ITS BALANCE SHEETS, OPERATING
STATEMENTS AND OTHER ENTITY DOCUMENTS SEPARATE FROM ANY OTHER PERSON AND HAS NOT
PERMITTED AND WILL NOT PERMIT ITS ASSETS TO BE LISTED AS ASSETS ON THE FINANCIAL
STATEMENT OF ANY OTHER ENTITY EXCEPT AS REQUIRED OR PERMITTED BY GAAP; PROVIDED,
HOWEVER, THAT ANY SUCH CONSOLIDATED FINANCIAL STATEMENT SHALL CONTAIN A NOTE
INDICATING THAT IT MAINTAINS SEPARATE BALANCE SHEETS AND OPERATING STATEMENTS
FOR THE BORROWER AND THE PROPERTY;
(XX)
HAS A SUFFICIENT NUMBER OF EMPLOYEES IN LIGHT OF ITS CONTEMPLATED
BUSINESS OPERATIONS, WHICH MAY BE NONE;
(XXI)
HAS OBSERVED AND WILL OBSERVE ALL PARTNERSHIP, CORPORATE OR
LIMITED LIABILITY COMPANY OR DELAWARE STATUTORY TRUST FORMALITIES, AS
APPLICABLE;
(XXII)
HAS AND WILL HAVE NO INDEBTEDNESS (INCLUDING LOANS (WHETHER OR
NOT SUCH LOANS ARE EVIDENCED BY A WRITTEN AGREEMENT) BETWEEN BORROWER AND ANY
AFFILIATES OF BORROWER AND RELATING TO THE MANAGEMENT OF FUNDS IN THE CUSTODIAL
ACCOUNT MAINTAINED BY THE PROPERTY MANAGER) OTHER THAN (I) THE LOAN AS MADE
PURSUANT TO THE ORIGINAL LOAN AGREEMENT, AS AMENDED AND RESTATED HEREBY FROM AND
AFTER THE MODIFICATION DATE, (II) LIABILITIES INCURRED IN THE ORDINARY COURSE OF
BUSINESS RELATING TO THE OWNERSHIP AND OPERATION OF THE PROPERTY AND THE ROUTINE
ADMINISTRATION OF BORROWER NOT TO EXCEED $3,000,000 AT ANY ONE TIME IN THE
AGGREGATE WITH RESPECT TO EACH ENTITY CONSTITUTING BORROWER (OTHER THAN
MANAGEMENT FEES AND COMMISSIONS AND LIABILITIES THAT ARE RESERVED FOR) AND, IN
THE CASE OF A GENERAL PARTNER OR MANAGING MEMBER OF A PERSON, LIABILITIES
ARISING BY REASON OF ITS STATUS AS A GENERAL PARTNER OR MANAGING MEMBER, WHICH
LIABILITIES
18
ARE PAID NOT MORE THAN SIXTY (60) DAYS AFTER THE LATER OF THE DATE INCURRED OR
INVOICED (UNLESS DISPUTED IN GOOD FAITH WITH ADEQUATE RESERVES ESTABLISHED
THEREFOR), ARE NOT EVIDENCED BY A NOTE AND WHICH AMOUNTS ARE NORMAL AND
REASONABLE UNDER THE CIRCUMSTANCES, AND (III) SUCH OTHER LIABILITIES THAT ARE
PERMITTED PURSUANT TO THE LOAN DOCUMENTS;
(XXIII)
HAS NOT AND WILL NOT ASSUME OR GUARANTEE OR BECOME OBLIGATED
FOR THE DEBTS OF ANY OTHER PERSON OR HOLD OUT ITS CREDIT AS BEING AVAILABLE TO
SATISFY THE OBLIGATIONS OF ANY OTHER PERSON EXCEPT AS PERMITTED PURSUANT TO THE
LOAN DOCUMENTS;
(XXIV)
HAS NOT AND WILL NOT ACQUIRE OBLIGATIONS OR SECURITIES OF ITS
PARTNERS, MEMBERS, BENEFICIARIES OR SHAREHOLDERS OR ANY OTHER AFFILIATE;
(XXV)
HAS ALLOCATED AND WILL ALLOCATE FAIRLY AND REASONABLY ANY
OVERHEAD EXPENSES THAT ARE SHARED WITH ANY AFFILIATE, INCLUDING, BUT NOT LIMITED
TO, PAYING FOR SHARED OFFICE SPACE AND SERVICES PERFORMED BY ANY EMPLOYEE OF AN
AFFILIATE;
(XXVI)
HAS NOT MAINTAINED OR USED, AND WILL NOT MAINTAIN OR USE,
INVOICES AND CHECKS BEARING THE NAME OF ANY OTHER PERSON, PROVIDED, HOWEVER,
THAT PROPERTY MANAGER, ON BEHALF OF