NOT ENTER INTO ANY CONTRACT OR
AGREEMENT (EXCLUDING THE DEVELOPMENT AGREEMENTS) WITH ANY OF ITS OFFICERS,
PRINCIPALS, EMPLOYEES, MEMBERS OR AFFILIATES OR ANY AFFILIATE OF ANY BORROWER
ENTITY EXCEPT UPON TERMS AND CONDITIONS THAT ARE INTRINSICALLY FAIR AND
SUBSTANTIALLY SIMILAR TO THOSE THAT WOULD BE AVAILABLE ON AN ARM'S-LENGTH BASIS
WITH THIRD PARTIES (EACH, A "PERMITTED AFFILIATE CONTRACT");
(G)
HAS NOT INCURRED, ASSUMED OR CREATED AND WILL NOT INCUR, ASSUME OR
CREATE ANY DEBT, SECURED OR UNSECURED, DIRECT OR CONTINGENT (INCLUDING
GUARANTEEING ANY OBLIGATION), OTHER THAN (I) THE BUILDING LOAN, (II) THE PROJECT
LOAN, (III) ANY INTEREST RATE CAP AND (IV) UNSECURED TRADE PAYABLES OR ACCRUED
EXPENSES OR OTHER OBLIGATIONS INCURRED IN THE ORDINARY COURSE OF BUSINESS IN
CONNECTION WITH THE DEVELOPING, CONSTRUCTING AND OPERATING OF THE MORTGAGED
PROPERTY; NO OTHER DEBT (OTHER THAN THE EXTENSION LOAN) WILL BE SECURED (SENIOR,
SUBORDINATE OR PARI PASSU) BY THE MORTGAGED PROPERTY;
(H)
HAS NOT MADE AND WILL NOT MAKE ANY LOANS OR ADVANCES TO ANY THIRD
PARTY (INCLUDING ANY AFFILIATE);
(I)
IS AND WILL BE, SOLVENT AND PAY ITS DEBTS FROM ITS ASSETS AS THE
SAME SHALL BECOME DUE, EXCEPT FOR THOSE BEING CONTESTED IN GOOD FAITH BY
APPROPRIATE PROCEEDINGS;
(J)
HAS DONE OR CAUSED TO BE DONE AND WILL DO ALL THINGS NECESSARY TO
PRESERVE ITS EXISTENCE;
104
(K)
WILL CONDUCT AND OPERATE ITS BUSINESS AS PRESENTLY, AND AS
PRESENTLY CONTEMPLATED TO BE, CONDUCTED AND OPERATED;
(L)
WILL MAINTAIN FINANCIAL STATEMENTS, BOOKS AND RECORDS AND BANK
ACCOUNTS SEPARATE FROM THOSE OF ITS AFFILIATES;
(M)
WILL BE, AND AT ALL TIMES WILL HOLD ITSELF OUT TO THE PUBLIC AS, A
LEGAL ENTITY SEPARATE AND DISTINCT FROM ANY OTHER ENTITY (INCLUDING ANY
AFFILIATE THEREOF);
(N)
WILL FILE ITS OWN TAX RETURNS;
(O)
WILL 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;
(P)
WILL NOT SEEK THE DISSOLUTION OR WINDING UP, IN WHOLE OR IN PART,
OF ITSELF OR THE MEMBERS, EXCEPT AS CONTEMPLATED BY SECTION 7.19(A) HEREOF;
(Q)
WILL NOT COMMINGLE ITS FUNDS AND OTHER ASSETS WITH THOSE OF ANY
AFFILIATE OR ANY OTHER PERSON;
(R)
HAS MAINTAINED, AND WILL MAINTAIN, ITS ASSETS IN SUCH A MANNER
THAT IT IS NOT COSTLY OR DIFFICULT TO SEGREGATE, ASCERTAIN OR IDENTIFY SUCH
ASSETS FROM THOSE OF ANY AFFILIATE OR ANY OTHER PERSON;
(S)
HAS NOT, AND WILL NOT, HOLD ITSELF OUT TO BE RESPONSIBLE FOR THE
DEBTS OR OBLIGATIONS OF ANY OTHER PERSON (INCLUDING ANY AFFILIATE);
(T)
WILL NOT DO ANY ACT WHICH WOULD MAKE IT IMPOSSIBLE TO CARRY ON
ITS ORDINARY BUSINESS OR THE BUSINESS OF THE MEMBERS;
(U)
WILL NOT POSSESS THE MORTGAGED PROPERTY OR INCIDENTAL PERSONAL
PROPERTY NECESSARY FOR THE OPERATION OF THE MORTGAGED PROPERTY FOR OTHER THAN A
BUSINESS OR COMPANY PURPOSE;
(V)
WILL NOT SELL, ENCUMBER OR OTHERWISE DISPOSE OF ANY PART OF THE
MORTGAGED PROPERTY OR INCIDENTAL PERSONAL PROPERTY NECESSARY FOR THE OPERATION
OF THE MORTGAGED PROPERTY, EXCEPT FOR THE TRANSFERS