THE "RELATED PARTIES"), EXCEPT UPON
TERMS AND CONDITIONS THAT ARE INTRINSICALLY FAIR, COMMERCIALLY REASONABLE AND
SUBSTANTIALLY SIMILAR TO THOSE THAT WOULD BE AVAILABLE ON AN ARMS-LENGTH BASIS
WITH THIRD PARTIES NOT SO AFFILIATED WITH BORROWER OR SUCH RELATED PARTIES AND
AT ALL TIMES SUBJECT TO THE PRIOR WRITTEN CONSENT OF THE REQUIRED LENDERS. THE
ML&P AGREEMENTS, MARKETING AGREEMENTS AND ER PURCHASE AGREEMENTS ARE HEREBY
APPROVED BY THE LENDERS.
84
(E)
EXCEPT FOR THE LOANS, BORROWER SHALL NEITHER INCUR NOR
GUARANTEE ANY INDEBTEDNESS (WHETHER PERSONAL OR NON-RECOURSE, SECURED OR
UNSECURED) OTHER THAN CUSTOMARY TRADE PAYABLES CONTEMPLATED BY THE CONSTRUCTION
BUDGET, AGED NOT IN EXCESS OF SIXTY (60) DAYS, AND UNSECURED LOANS FROM MEMBERS
OF BORROWER THAT ARE SUBORDINATE TO THE LOANS.
(F)
BORROWER HAS NOT MADE AND WILL NOT MAKE ANY LOANS OR ADVANCES
TO ANY PERSON AND SHALL NOT ACQUIRE OBLIGATIONS OR SECURITIES OF ANY RELATED
PARTY.
(G)
BORROWER IS AND WILL REMAIN SOLVENT AND BORROWER WILL PAY ITS
DEBTS AND LIABILITIES (INCLUDING, AS APPLICABLE, SHARED PERSONNEL AND OVERHEAD
EXPENSES) FROM ITS ASSETS AS THE SAME SHALL BECOME DUE.
(H)
BORROWER HAS DONE OR CAUSED TO BE DONE AND WILL DO ALL THINGS
NECESSARY TO OBSERVE ORGANIZATIONAL FORMALITIES AND PRESERVE ITS EXISTENCE, AND
BORROWER WILL NOT, NOR WILL BORROWER PERMIT ANY RELATED PARTY TO, AMEND, MODIFY
OR OTHERWISE CHANGE THE PARTNERSHIP CERTIFICATE, PARTNERSHIP AGREEMENT, ARTICLES
OF INCORPORATION AND BYLAWS, OPERATING AGREEMENT, TRUST OR OTHER ORGANIZATIONAL
DOCUMENTS OF BORROWER OR SUCH RELATED PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF
THE REQUIRED LENDERS.
(I)
BORROWER HAS MAINTAINED AND WILL MAINTAIN ALL OF ITS BOOKS,
RECORDS, FINANCIAL STATEMENTS AND BANK ACCOUNTS SEPARATE FROM THOSE OF ANY OTHER
PERSON AND BORROWER'S ASSETS WILL NOT BE LISTED AS ASSETS ON THE FINANCIAL
STATEMENT OF ANY OTHER PERSON. BORROWER HAS FILED AND WILL FILE ITS OWN TAX
RETURNS AND WILL NOT FILE A CONSOLIDATED FEDERAL INCOME TAX RETURN WITH ANY
OTHER PERSON. BORROWER SHALL MAINTAIN ITS BOOKS, RECORDS, RESOLUTIONS AND
AGREEMENTS AS OFFICIAL RECORDS.
(J)
BORROWER WILL BE, AND AT ALL TIMES WILL HOLD ITSELF OUT TO
THE PUBLIC AS, A LEGAL ENTITY SEPARATE AND DISTINCT FROM ANY OTHER PERSON
(INCLUDING ANY AFFILIATE OR OTHER RELATED PARTY), SHALL CORRECT ANY KNOWN
MISUNDERSTANDING REGARDING ITS STATUS AS A SEPARATE ENTITY, SHALL CONDUCT
BUSINESS IN ITS OWN NAME, SHALL NOT IDENTIFY ITSELF OR ANY OF ITS AFFILIATES AS
A DIVISION OR PART OF THE OTHER AND SHALL MAINTAIN AND UTILIZE SEPARATE
STATIONERY, INVOICES AND CHECKS.
(K)
BORROWER 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.
(L)
NEITHER BORROWER NOR ANY RELATED PARTY WILL SEEK THE
DISSOLUTION, WINDING UP, LIQUIDATION, CONSOLIDATION OR MERGER IN WHOLE OR IN
PART OF BORROWER, OR THE SALE OF MATERIAL ASSETS OF BORROWER.
85
(M)
BORROWER HAS NOT COMMINGLED AND WILL NOT COMMINGLE ITS ASSETS
WITH THOSE OF ANY OTHER PERSON AND WILL HOLD ALL OF ITS ASSETS IN ITS OWN NAME.
(N)
BORROWER