BY CONNECTING THE PROPERTY TO THE
POWER GRID, SUBJECT TO INVOLUNTARY INTERRUPTIONS CAUSED BY MECHANICAL FAILURE,
FORCE MAJEURE OR OTHER EMERGENCY SITUATIONS AND WHICH BORROWER OR THE PROVIDER
UNDER THE ENERGY SERVICES AGREEMENT IS USING DILIGENT AND COMMERCIALLY
REASONABLE EFFORTS TO CORRECT.
ARTICLE V - ENTITY COVENANTS
SECTION 5.1
SINGLE PURPOSE ENTITY/SEPARATENESS.
(A)
EACH INDIVIDUAL BORROWER HEREBY REPRESENTS AND WARRANTS TO,
AND COVENANTS WITH, ADMINISTRATIVE AGENT AND LENDERS THAT AT ALL TIMES UNTIL
SUCH TIME AS THE OBLIGATIONS SHALL BE PAID AND PERFORMED IN FULL, IT SHALL NOT:
(I)
ENGAGE IN
ANY BUSINESS OR ACTIVITY OTHER THAN THE OWNERSHIP, OPERATION, MAINTENANCE,
LEASING, FINANCING AND MANAGEMENT OF ITS RESPECTIVE PORTION OF THE PROPERTY, AND
ACTIVITIES INCIDENTAL THERETO;
(II)
ACQUIRE OR
OWN ANY ASSETS OTHER THAN (A) ITS RESPECTIVE PROPERTY, AND (B) SUCH INCIDENTAL
PERSONAL PROPERTY AS MAY BE NECESSARY FOR THE OWNERSHIP, LEASING, MAINTENANCE
AND OPERATION OF ITS RESPECTIVE PORTION OF THE PROPERTY;
(III)
MERGE INTO OR
CONSOLIDATE WITH ANY PERSON, OR DISSOLVE, TERMINATE, LIQUIDATE IN WHOLE OR IN
PART, TRANSFER OR OTHERWISE DISPOSE OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR
CHANGE ITS LEGAL STRUCTURE;
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(IV)
FAIL TO
OBSERVE ALL ORGANIZATIONAL FORMALITIES NECESSARY TO MAINTAIN ITS SEPARATE
EXISTENCE, OR FAIL TO PRESERVE ITS EXISTENCE AS AN ENTITY DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING (IF APPLICABLE) UNDER THE APPLICABLE LAW
OF THE JURISDICTION OF ITS ORGANIZATION OR FORMATION, OR AMEND, MODIFY OR
TERMINATE OR FAIL TO COMPLY WITH THE SPECIAL PURPOSE PROVISIONS (AS DEFINED IN
ITS ORGANIZATIONAL DOCUMENTS) OF ITS ORGANIZATIONAL DOCUMENTS WITHOUT THE PRIOR
WRITTEN CONSENT OF LENDER;
(V)
OWN ANY
SUBSIDIARY, OR MAKE ANY INVESTMENT IN, OR OWN ANY EQUITY IN, ANY PERSON;
(VI)
EXCEPT AS
CONTEMPLATED BY THE LOAN DOCUMENTS WITH RESPECT TO ITS CO‐BORROWERS, COMMINGLE
ITS ASSETS WITH THE ASSETS OF ANY OTHER PERSON EXCEPT THAT ALL AMOUNTS PAID TO
BORROWER (INCLUDING, WITHOUT LIMITATION, ALL AMOUNTS TRANSFERRED FROM THE
RESTRICTED ACCOUNT) MAY BE DEPOSITED INTO A CENTRALIZED CASH MANAGEMENT ACCOUNT,
INCLUDING, WITHOUT LIMITATION, THE BORROWER'S ACCOUNT (CONTROLLED BY AN
AFFILIATE OF BORROWER IN ACCORDANCE WITH THE CASH MANAGEMENT AGENCY AGREEMENT)
ON BEHALF OF BORROWER AND VARIOUS OTHER ENTITIES THAT ARE AFFILIATES OF
BORROWER, AS AND WHEN RECEIVED, PROVIDED THAT ALL AMOUNTS DEPOSITED INTO SUCH
CENTRALIZED ACCOUNT FOR THE BENEFIT OF BORROWER ARE CLEARLY SEGREGATED, FOR
ACCOUNTING PURPOSES, FROM THE REVENUES AND EXPENSES OF ALL OTHER PERSONS,
PROVIDED, FURTHER, THAT IF THE CASH MANAGEMENT AGENCY AGREEMENT OF EVEN DATE
HEREWITH BETWEEN BORROWER AND GUARANTOR TERMINATES FOR ANY REASON, THE BORROWER
WILL ESTABLISH THEIR OWN SEPARATE ACCOUNT AND WILL NOT COMMINGLE ITS ASSETS WITH
THE ASSETS OF ANY OTHER PERSON;
(VII)
INCUR ANY
INDEBTEDNESS, SECURED OR UNSECURED, DIRECT OR CONTINGENT (INCLUDING GUARANTEEING
ANY OBLIGATION), OTHER THAN (A) THE DEBT, (B) TRADE AND OPERATIONAL INDEBTEDNESS
INCURRED IN THE ORDINARY COURSE OF BUSINESS WITH TRADE CREDITORS, PROVIDED SUCH
INDEBTEDNESS IS (1) UNSECURED, (2) NOT EVIDENCED BY A NOTE, (3) ON COMMERCIALLY
REASONABLE TERMS AND CONDITIONS, AND (4) DUE NOT MORE THAN SIXTY (60) DAYS PAST
THE