SUCH PERSON, MAY MAINTAIN AND USE INVOICES
AND CHECKS BEARING PROPERTY MANAGER'S NAME;
(XXVII)
HAS NOT PLEDGED AND WILL NOT PLEDGE ITS ASSETS FOR THE BENEFIT
OF ANY OTHER PERSON EXCEPT AS PERMITTED OR REQUIRED PURSUANT TO THIS AGREEMENT;
(XXVIII)
HAS HELD ITSELF OUT AND IDENTIFIED ITSELF AND WILL HOLD ITSELF
OUT AND IDENTIFY ITSELF AS A SEPARATE AND DISTINCT ENTITY UNDER ITS OWN NAME OR
IN A NAME FRANCHISED OR LICENSED TO IT BY AN ENTITY OTHER THAN AN AFFILIATE OF
BORROWER AND NOT AS A DIVISION OR PART OF ANY OTHER PERSON, EXCEPT FOR SERVICES
RENDERED BY PROPERTY MANAGER UNDER THE PROPERTY MANAGEMENT AGREEMENT, SO LONG AS
PROPERTY MANAGER HOLDS ITSELF OUT AS AN AGENT OF THE BORROWER;
(XXIX)
HAS MAINTAINED AND WILL MAINTAIN ITS ASSETS IN SUCH A MANNER
THAT IT WILL NOT BE COSTLY OR DIFFICULT TO SEGREGATE, ASCERTAIN OR IDENTIFY ITS
INDIVIDUAL ASSETS FROM THOSE OF ANY OTHER PERSON;
(XXX)
HAS NOT MADE AND WILL NOT MAKE LOANS TO ANY PERSON OR HOLD
EVIDENCE OF INDEBTEDNESS ISSUED BY ANY OTHER PERSON OR ENTITY (OTHER THAN CASH
AND INVESTMENT-GRADE SECURITIES ISSUED BY AN ENTITY THAT IS NOT AN AFFILIATE OF
OR SUBJECT TO COMMON OWNERSHIP WITH SUCH ENTITY);
(XXXI)
HAS NOT IDENTIFIED AND WILL NOT IDENTIFY ITS PARTNERS, MEMBERS,
BENEFICIARIES OR SHAREHOLDERS, OR ANY AFFILIATE OF ANY OF THEM, AS A DIVISION OR
PART OF IT, AND HAS NOT IDENTIFIED ITSELF AND SHALL NOT IDENTIFY ITSELF AS A
DIVISION OF ANY OTHER PERSON;
(XXXII)
OTHER THAN THE PROPERTY MANAGEMENT AGREEMENT AND ANY TENANTS IN
COMMON AGREEMENT, 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
19
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;
(XXXIII)
DOES NOT AND WILL NOT HAVE ANY OF ITS OBLIGATIONS GUARANTEED BY
ANY AFFILIATE EXCEPT AS OTHERWISE REQUIRED IN THE LOAN DOCUMENTS; AND
(XXXIV)
HAS COMPLIED AND WILL COMPLY WITH ALL OF THE TERMS AND
PROVISIONS CONTAINED IN ITS ORGANIZATIONAL DOCUMENTS.
"Sponsor" shall mean Behringer Harvard Holdings, LLC, a Delaware limited
liability company.
"State" shall mean, with respect to the Property, the State or Commonwealth in
which the Property or any part thereof is located.
"Successor Borrower" shall have the meaning set forth in Section 2.5.3 hereof.
"Survey" shall mean a survey of the Property prepared by a surveyor licensed in
the State and satisfactory to Lender and the company or companies issuing the
Title Insurance Policy, and containing a certification of such surveyor
satisfactory to Lender.
"Tangible Net Worth" shall mean, with respect to any Person as of a given date,
such Person's equity calculated in conformance with GAAP by subtracting total
liabilities from total tangible assets.
"Tax and Insurance Escrow