HAS
SIGNED THE COMPANY'S LIMITED LIABILITY COMPANY AGREEMENT AND HAS NO OBLIGATION
TO MAKE CAPITAL CONTRIBUTIONS TO THE COMPANY, OR ONE (1) NATURAL PERSON OR ONE
ENTITY THAT IS NOT A MEMBER OF THE COMPANY, THAT HAS SIGNED ITS LIMITED
LIABILITY COMPANY AGREEMENT AND THAT, UNDER THE TERMS OF SUCH LIMITED LIABILITY
COMPANY AGREEMENT BECOMES A MEMBER OF THE COMPANY IMMEDIATELY PRIOR TO THE
WITHDRAWAL OR DISSOLUTION OF THE LAST REMAINING MEMBER OF THE COMPANY;
(X)
IF SUCH ENTITY IS (A) A LIMITED LIABILITY COMPANY, HAS AN
OPERATING AGREEMENT, (B) A LIMITED PARTNERSHIP, HAS A LIMITED PARTNERSHIP
AGREEMENT, (C) A CORPORATION, HAS A CERTIFICATE OF INCORPORATION OR ARTICLES, OR
(D) A DELAWARE STATUTORY TRUST, HAS ORGANIZATIONAL DOCUMENTS THAT, IN EACH CASE,
PROVIDE THAT FROM AND AFTER THE MODIFICATION DATE SUCH ENTITY WILL NOT: (1)
DISSOLVE, MERGE, LIQUIDATE, CONSOLIDATE; (2) EXCEPT AS PERMITTED HEREIN, SELL
ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR THE ASSETS OF THE BORROWER (AS
APPLICABLE) EXCEPT AS PERMITTED HEREIN, (3) ENGAGE IN ANY OTHER BUSINESS
ACTIVITY, OR AMEND ITS ORGANIZATIONAL DOCUMENTS WITH RESPECT TO THE MATTERS SET
FORTH IN THIS DEFINITION WITHOUT THE CONSENT OF THE LENDER; OR (4) WITHOUT THE
AFFIRMATIVE VOTE OF ALL DIRECTORS OF THE CORPORATION (THAT IS SUCH ENTITY OR THE
GENERAL PARTNER OR MANAGING OR CO-MANAGING MEMBER OR MANAGER OF SUCH ENTITY)
FILE A BANKRUPTCY OR INSOLVENCY PETITION OR OTHERWISE INSTITUTE INSOLVENCY
PROCEEDINGS WITH RESPECT TO ITSELF OR TO ANY OTHER ENTITY IN WHICH IT HAS A
DIRECT OR INDIRECT LEGAL OR BENEFICIAL OWNERSHIP INTEREST;
(XI)
[INTENTIONALLY OMITTED];
(XII)
IS SOLVENT AND PAYS ITS DEBTS AND LIABILITIES (INCLUDING, AS
APPLICABLE, SHARED PERSONNEL AND OVERHEAD EXPENSES) FROM ITS ASSETS AS THE SAME
BECOME DUE, AND IS MAINTAINING ADEQUATE CAPITAL FOR THE NORMAL OBLIGATIONS
REASONABLY FORESEEABLE IN A BUSINESS OF ITS SIZE AND CHARACTER AND IN LIGHT OF
ITS CONTEMPLATED BUSINESS OPERATIONS;
17
(XIII)
HAS NOT FAILED AND WILL NOT FAIL TO CORRECT ANY KNOWN
MISUNDERSTANDING REGARDING THE SEPARATE IDENTITY OF SUCH ENTITY;
(XIV)
HAS FILED AND WILL FILE ITS OWN TAX RETURNS; PROVIDED, HOWEVER,
THAT BORROWER'S ASSETS AND INCOME MAY BE INCLUDED IN A CONSOLIDATED TAX RETURN
OF ITS PARENT COMPANIES IF INCLUSION ON SUCH CONSOLIDATED TAX RETURN IS IN
COMPLIANCE WITH APPLICABLE LAW OR, IN THE EVENT THAT BORROWER IS A DISREGARDED
ENTITY FOR FEDERAL TAX PURPOSES, THEN BORROWER'S ASSETS AND INCOME MAY BE
INCLUDED ON THE TAX RETURNS FILED BY ITS OWNER;
(XV)
HAS MAINTAINED AND WILL MAINTAIN ITS OWN RESOLUTIONS AND
AGREEMENTS;
(XVI)
(A) HAS NOT COMMINGLED AND WILL NOT COMMINGLE ITS FUNDS OR ASSETS
WITH THOSE OF ANY OTHER PERSON EXCEPT OTHER BORROWERS AND (B) HAS NOT
PARTICIPATED AND WILL NOT PARTICIPATE IN ANY CASH MANAGEMENT SYSTEM WITH ANY
OTHER PERSON, EXCEPT WITH RESPECT TO A CUSTODIAL ACCOUNT MAINTAINED BY THE
PROPERTY MANAGER ON BEHALF OF AFFILIATES OF BORROWER AND, WITH RESPECT TO FUNDS
IN SUCH CUSTODIAL ACCOUNT, HAS SEPARATELY ACCOUNTED, AND WILL CONTINUE TO
SEPARATELY ACCOUNT FOR, EACH ITEM OF INCOME AND EXPENSE APPLICABLE TO THE