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.
(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 HAS NOT GUARANTEED AND WILL NOT GUARANTEE OR BECOME OBLIGATED
FOR THE DEBTS OF ANY OTHER PERSON AND DOES NOT AND WILL NOT HOLD ITSELF OUT AS
BEING RESPONSIBLE FOR THE DEBTS OR OBLIGATIONS OF ANY OTHER PERSON.
(O)
IF BORROWER IS A LIMITED PARTNERSHIP OR A LIMITED LIABILITY COMPANY, AT
LEAST ONE (1) GENERAL PARTNER OR MEMBER, OR IF BORROWER IS A GENERAL PARTNERSHIP
AT LEAST ONE (1) GENERAL PARTNER (EACH, AN "SPC PARTY") SHALL BE A CORPORATION
OR LIMITED LIABILITY COMPANY WHOSE SOLE ASSET IS ITS INTEREST IN BORROWER.
EACH
SPC PARTY WILL AT ALL TIMES COMPLY, AND WILL CAUSE BORROWER TO COMPLY, WITH EACH
OF THE REPRESENTATIONS, WARRANTIES, AND COVENANTS
62
CONTAINED IN THIS SECTION 16.3 AS IF SUCH REPRESENTATION, WARRANTY OR COVENANT
WAS MADE DIRECTLY BY SUCH SPC PARTY.
UPON THE WITHDRAWAL OR THE DISASSOCIATION
OF THE SPC PARTY FROM BORROWER, BORROWER SHALL IMMEDIATELY APPOINT A NEW MEMBER
WHOSE ORGANIZATIONAL DOCUMENTS ARE SUBSTANTIALLY SIMILAR TO THOSE OF THE SPC
PARTY AND DELIVER A NEW NON-CONSOLIDATION OPINION TO THE RATING AGENCY OR RATING
AGENCIES, AS APPLICABLE, WITH RESPECT TO THE NEW SPC PARTY AND ITS EQUITY
OWNERS.
(P)
BORROWER SHALL AT ALL TIMES CAUSE THERE TO BE AT LEAST ONE (1) DULY
APPOINTED MEMBER OR MANAGER ("INDEPENDENT DIRECTOR") OF BORROWER (IF BORROWER IS
A CORPORATION OR A SINGLE MEMBER DELAWARE LIMITED LIABILITY COMPANY) AND, UPON
LENDER'S REQUEST IN CONNECTION WITH A SECURITIZATION PURSUANT TO ARTICLE XXV
HEREOF, ONE (1) INDEPENDENT DIRECTOR OF EACH SPC PARTY (IF BORROWER IS A LIMITED
PARTNERSHIP OR A LIMITED LIABILITY COMPANY) REASONABLY SATISFACTORY TO LENDER
WHO IS NOT AT THE TIME OF INITIAL APPOINTMENT, HAS NOT BEEN AT ANY TIME DURING
THE PRECEDING FIVE (5) YEARS AND SHALL NOT BE WHILE SERVING AS AN INDEPENDENT
DIRECTOR: (I) A STOCKHOLDER, DIRECTOR (OTHER THAN AS AN INDEPENDENT DIRECTOR),
OFFICER, EMPLOYEE, PARTNER, ATTORNEY OR COUNSEL OF BORROWER OR SUCH SPC PARTY OR
ANY AFFILIATE OF EITHER OF THEM; (II) A CUSTOMER, SUPPLIER OR OTHER PERSON WHO
DERIVES ANY OF ITS PURCHASES OR REVENUES FROM ITS ACTIVITIES WITH BORROWER OR
SUCH SPC PARTY OR ANY AFFILIATE OF EITHER OF THEM; (III) A PERSON CONTROLLING OR
UNDER COMMON CONTROL WITH ANY SUCH STOCKHOLDER, PARTNER, CUSTOMER, SUPPLIER OR
OTHER PERSON;