APPLICABLE
(EACH AN "INDEPENDENT DIRECTOR"), OF, IF BORROWER OR SPE PLEDGOR IS A
CORPORATION, BORROWER AND SPE PLEDGOR, AS APPLICABLE, AND, IF BORROWER OR SPE
PLEDGOR IS A LIMITED PARTNERSHIP OR LIMITED LIABILITY COMPANY, OF THE GENERAL
PARTNER, REASONABLY SATISFACTORY TO LENDER WHO SHALL NOT HAVE BEEN AT THE TIME
OF SUCH INDIVIDUAL'S APPOINTMENT, AND MAY NOT BE OR HAVE BEEN AT ANY TIME (A) A
SHAREHOLDER OF SPE PLEDGOR, OFFICER, DIRECTOR, ATTORNEY, COUNSEL, PARTNER,
MEMBER OR EMPLOYEE OF BORROWER OR ANY OF THE FOREGOING PERSONS OR AFFILIATES
THEREOF, (B) A CUSTOMER OR CREDITOR OF, OR SUPPLIER OR SERVICE PROVIDER TO,
BORROWER OR SPE PLEDGOR OR ANY OF ITS SHAREHOLDERS, PARTNERS, MEMBERS OR THEIR
AFFILIATES, (C) A MEMBER OF THE IMMEDIATE FAMILY OF ANY PERSON REFERRED TO IN
(A) OR (B) ABOVE OR (D) A PERSON CONTROLLING, CONTROLLED BY OR UNDER COMMON
CONTROL WITH ANY PERSON REFERRED TO IN (A)
31
THROUGH (C) ABOVE.
A NATURAL PERSON WHO OTHERWISE SATISFIES THE FOREGOING
DEFINITION EXCEPT FOR BEING THE INDEPENDENT DIRECTOR OF A SINGLE PURPOSE ENTITY
AFFILIATED WITH BORROWER, SPE PLEDGOR OR GENERAL PARTNER SHALL NOT BE
DISQUALIFIED FROM SERVING AS AN INDEPENDENT DIRECTOR IF SUCH INDIVIDUAL IS AT
THE TIME OF INITIAL APPOINTMENT, OR AT ANY TIME WHILE SERVING AS THE INDEPENDENT
DIRECTOR, AN INDEPENDENT DIRECTOR OF A SINGLE PURPOSE ENTITY AFFILIATED WITH
BORROWER OR SPE PLEDGOR OR GENERAL PARTNER IF SUCH INDIVIDUAL IS AN INDEPENDENT
DIRECTOR PROVIDED BY A NATIONALLY-RECOGNIZED COMPANY THAT PROVIDES PROFESSIONAL
INDEPENDENT DIRECTORS.
(XVII)
BORROWER, SPE PLEDGOR AND, IF APPLICABLE, EACH GENERAL PARTNER,
SHALL NOT CAUSE OR PERMIT THE BOARD OF DIRECTORS OR BOARD OF MANAGERS OR OTHER
GOVERNING BOARD OR BODY, AS APPLICABLE, OF BORROWER, SPE PLEDGOR OR, IF
APPLICABLE, EACH GENERAL PARTNER, TO TAKE ANY ACTION WHICH, UNDER THE TERMS OF
ANY CERTIFICATE OF INCORPORATION, BY-LAWS, CERTIFICATE OF FORMATION, OPERATING
AGREEMENT OR ARTICLES OF ORGANIZATION WITH RESPECT TO ANY COMMON STOCK, REQUIRES
A VOTE OF THE BOARD OF DIRECTORS OF BORROWER OR SPE PLEDGOR, OR, IF APPLICABLE,
THE GENERAL PARTNER, UNLESS AT THE TIME OF SUCH ACTION THERE SHALL BE AT LEAST
TWO (2) MEMBERS, WITH RESPECT TO BORROWER, AND AT LEAST ONE (1) MEMBER, WITH
RESPECT TO SPE PLEDGOR, WHO IS OR ARE INDEPENDENT DIRECTOR(S).
(XVIII)
BORROWER, SPE PLEDGOR AND, IF APPLICABLE, EACH GENERAL PARTNER HAS
PAID AND SHALL PAY THE SALARIES OF THEIR OWN EMPLOYEES AND HAS MAINTAINED AND
SHALL MAINTAIN A SUFFICIENT NUMBER OF EMPLOYEES IN LIGHT OF THEIR CONTEMPLATED
BUSINESS OPERATIONS.
(XIX)
BORROWER AND SPE PLEDGOR SHALL, AND SHALL CAUSE THEIR AFFILIATES
TO, AND BORROWER AND SPE PLEDGOR HAVE AND HAVE CAUSED THEIR AFFILIATES TO,
CONDUCT THEIR BUSINESS SO THAT THE ASSUMPTIONS MADE WITH RESPECT TO BORROWER AND
SPE PLEDGOR IN THAT CERTAIN OPINION LETTER RELATING TO SUBSTANTIVE
NON-CONSOLIDATION DATED THE DATE HEREOF (THE "INSOLVENCY OPINION") DELIVERED IN
CONNECTION WITH THE LOAN SHALL BE TRUE AND CORRECT IN ALL RESPECTS.
NOTWITHSTANDING THE FOREGOING, HOLDERS OF DIRECT OR INDIRECT EQUITY INTERESTS IN
BORROWER MAY DELIVER TO LENDER SO CALLED "BOTTOM UP"