OR OTHER PERSON OR ENTITY THAT SHALL BECOME A MEMBER OF THE LIMITED LIABILITY
COMPANY UPON THE DISSOLUTION OR DISASSOCIATION OF THE MEMBER;
(IX)
IF SUCH ENTITY IS (A) A LIMITED LIABILITY
COMPANY, HAS ARTICLES OF ORGANIZATION, A CERTIFICATE OF FORMATION AND/OR AN
OPERATING AGREEMENT, AS APPLICABLE, (B) A LIMITED PARTNERSHIP, HAS A LIMITED
PARTNERSHIP AGREEMENT, (C) A CORPORATION, HAS A CERTIFICATE OR ARTICLES OF
INCORPORATION AND BYLAWS, AS APPLICABLE, OR (D) A DELAWARE STATUTORY TRUST, HAS
ORGANIZATIONAL DOCUMENTS THAT, IN EACH CASE, PROVIDE THAT SUCH ENTITY WILL NOT:
(1) DISSOLVE, MERGE, LIQUIDATE, CONSOLIDATE; (2) EXCEPT AS PERMITTED HEREIN,
SELL ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR THE ASSETS OF THE BORROWER (AS
APPLICABLE) EXCEPT AS PERMITTED HEREIN; (3) ENGAGE IN ANY OTHER BUSINESS
ACTIVITY, OR AMEND ITS ORGANIZATIONAL DOCUMENTS WITH RESPECT TO THE MATTERS SET
FORTH IN THIS DEFINITION WITHOUT THE CONSENT OF THE LENDER; OR (4) WITHOUT THE
AFFIRMATIVE VOTE OF ALL DIRECTORS OF THE CORPORATION (THAT IS SUCH ENTITY OR THE
GENERAL PARTNER OR MANAGING OR CO-MANAGING MEMBER OR MANAGER OF SUCH ENTITY),
FILE A BANKRUPTCY OR INSOLVENCY PETITION OR OTHERWISE INSTITUTE INSOLVENCY
PROCEEDINGS WITH RESPECT TO ITSELF OR TO ANY OTHER ENTITY IN WHICH IT HAS A
DIRECT OR INDIRECT LEGAL OR BENEFICIAL OWNERSHIP INTEREST;
(X)
HAS NOT ENTERED INTO OR BEEN A PARTY TO,
AND WILL NOT ENTER INTO OR BE A PARTY TO, ANY TRANSACTION WITH ITS PARTNERS,
MEMBERS, BENEFICIARIES, SHAREHOLDERS OR AFFILIATES EXCEPT (A) IN THE ORDINARY
COURSE OF ITS BUSINESS AND ON TERMS WHICH ARE INTRINSICALLY FAIR, COMMERCIALLY
REASONABLE AND ARE NO LESS FAVORABLE TO IT THAN WOULD BE OBTAINED IN A
COMPARABLE ARM'S-LENGTH TRANSACTION WITH AN UNRELATED THIRD PARTY AND (B) IN
CONNECTION WITH THIS AGREEMENT;
(XI)
IS SOLVENT AND PAYS ITS DEBTS AND
LIABILITIES (INCLUDING, AS APPLICABLE, SHARED PERSONNEL AND OVERHEAD EXPENSES)
FROM ITS ASSETS AS THE SAME BECOME DUE, AND IS MAINTAINING ADEQUATE CAPITAL FOR
THE NORMAL OBLIGATIONS REASONABLY FORESEEABLE IN A BUSINESS OF ITS SIZE AND
CHARACTER AND IN LIGHT OF ITS CONTEMPLATED BUSINESS OPERATIONS;
(XII)
HAS NOT FAILED AND WILL NOT FAIL TO CORRECT
ANY KNOWN MISUNDERSTANDING REGARDING THE SEPARATE IDENTITY OF SUCH ENTITY;
(XIII)
WILL FILE ITS OWN TAX RETURNS; PROVIDED,
HOWEVER, THAT BORROWER'S ASSETS AND INCOME MAY BE INCLUDED IN A CONSOLIDATED TAX
RETURN OF ITS PARENT COMPANIES IF INCLUSION ON SUCH CONSOLIDATED TAX RETURN IS
IN COMPLIANCE WITH APPLICABLE LAW;
15
(XIV)
HAS MAINTAINED AND WILL MAINTAIN ITS OWN
RESOLUTIONS AND AGREEMENTS;
(XV)
(A) HAS NOT COMMINGLED AND WILL NOT COMMINGLE
ITS FUNDS OR ASSETS WITH THOSE OF ANY OTHER PERSON AND (B) HAS NOT PARTICIPATED
AND WILL NOT PARTICIPATE IN ANY CASH MANAGEMENT SYSTEM WITH ANY OTHER PERSON,
EXCEPT WITH RESPECT TO A CUSTODIAL ACCOUNT MAINTAINED BY THE MANAGER ON BEHALF
OF AFFILIATES OF BORROWER AND, WITH RESPECT TO FUNDS IN SUCH CUSTODIAL ACCOUNT,
HAS SEPARATELY ACCOUNTED, AND WILL CONTINUE TO SEPARATELY ACCOUNT FOR, EACH ITEM
OF INCOME AND EXPENSE APPLICABLE TO THE PROPERTY AND BORROWER;
(XVI)
HAS HELD AND WILL