BORROWER SHALL NOT
ENTER INTO ANY TRANSACTION OF MERGER OR CONSOLIDATION, OR LIQUIDATE OR DISSOLVE
ITSELF (OR SUFFER ANY LIQUIDATION OR DISSOLUTION), OR ACQUIRE OR BE ACQUIRED BY
ANY PERSON, OR CONVEY, SELL, LOAN OR OTHERWISE DISPOSE OF ALL OR SUBSTANTIALLY
ALL OF ITS PROPERTY OR BUSINESS, EXCEPT AS PROVIDED FOR IN THIS AGREEMENT.
(J)
DISTRIBUTIONS.
THE BORROWER MAY NOT
DECLARE OR PAY OR MAKE, DIRECTLY OR INDIRECTLY, ANY DISTRIBUTION (WHETHER IN
CASH OR OTHER PROPERTY) WITH RESPECT TO ANY PERSON'S EQUITY INTEREST IN THE
BORROWER (COLLECTIVELY, A "DISTRIBUTION"); PROVIDED, HOWEVER, IF NO EARLY
TERMINATION EVENT HAS OCCURRED OR WILL OCCUR AS A RESULT THEREOF, THE BORROWER
MAY MAKE DISTRIBUTIONS.
(K)
AGREEMENTS.
THE BORROWER SHALL NOT AMEND
OR MODIFY (I) THE PROVISIONS OF ITS LIMITED LIABILITY COMPANY AGREEMENT OR (II)
THE PURCHASE AGREEMENT WITHOUT THE CONSENT OF THE ADMINISTRATIVE AGENT AND PRIOR
WRITTEN NOTICE TO EACH MANAGING AGENT AND CONCORD, OR ISSUE ANY POWER OF
ATTORNEY EXCEPT TO THE ADMINISTRATIVE AGENT OR THE SERVICER.
(L)
SEPARATE EXISTENCE.
THE BORROWER SHALL:
(I)
MAINTAIN ITS OWN DEPOSIT ACCOUNT OR
ACCOUNTS, SEPARATE FROM THOSE OF ANY AFFILIATE, WITH COMMERCIAL BANKING
INSTITUTIONS.
THE FUNDS OF THE BORROWER WILL NOT BE DIVERTED TO ANY OTHER
PERSON OR FOR OTHER THAN CORPORATE USES OF THE BORROWER.
(II)
ENSURE THAT, TO THE EXTENT THAT IT SHARES
THE SAME PERSONS AS OFFICERS OR OTHER EMPLOYEES AS ANY OF ITS AFFILIATES, THE
SALARIES OF AND THE EXPENSES RELATED TO PROVIDING BENEFITS TO SUCH OFFICERS OR
EMPLOYEES SHALL BE FAIRLY ALLOCATED AMONG SUCH ENTITIES, AND EACH SUCH ENTITY
SHALL BEAR ITS FAIR SHARE OF THE SALARY AND BENEFIT COSTS ASSOCIATED WITH ALL
SUCH COMMON OFFICERS AND EMPLOYEES.
(III)
ENSURE THAT, TO THE EXTENT THAT IT JOINTLY
CONTRACTS WITH ANY OF ITS AFFILIATES TO DO BUSINESS WITH VENDORS OR SERVICE
PROVIDERS OR TO SHARE OVERHEAD EXPENSES, THE COSTS INCURRED IN SO DOING SHALL BE
ALLOCATED FAIRLY AMONG SUCH ENTITIES, AND EACH SUCH ENTITY SHALL BEAR ITS FAIR
SHARE OF SUCH COSTS.
TO THE EXTENT THAT THE BORROWER CONTRACTS OR DOES
42
BUSINESS WITH VENDORS OR SERVICE PROVIDERS WHEN THE GOODS AND SERVICES PROVIDED
ARE PARTIALLY FOR THE BENEFIT OF ANY OTHER PERSON, THE COSTS INCURRED IN SO
DOING SHALL BE FAIRLY ALLOCATED TO OR AMONG SUCH ENTITIES FOR WHOSE BENEFIT THE
GOODS AND SERVICES ARE PROVIDED, AND EACH SUCH ENTITY SHALL BEAR ITS FAIR SHARE
OF SUCH COSTS.
ALL MATERIAL TRANSACTIONS BETWEEN BORROWER AND ANY OF ITS
AFFILIATES SHALL BE ONLY ON AN ARM'S LENGTH BASIS.
(IV)
MAINTAIN A PRINCIPAL EXECUTIVE AND
ADMINISTRATIVE OFFICE THROUGH WHICH ITS BUSINESS IS CONDUCTED SEPARATE FROM
THOSE OF ITS AFFILIATES.
TO THE EXTENT THAT BORROWER AND ANY OF ITS AFFILIATES
HAVE OFFICES IN THE SAME LOCATION, THERE SHALL BE A FAIR AND APPROPRIATE
ALLOCATION OF OVERHEAD COSTS AMONG THEM, AND EACH SUCH ENTITY SHALL BEAR ITS
FAIR SHARE OF SUCH EXPENSES.
(V)
CONDUCT ITS AFFAIRS STRICTLY IN ACCORDANCE
WITH ITS LIMITED LIABILITY COMPANY AGREEMENT AND OBSERVE ALL NECESSARY,
APPROPRIATE AND CUSTOMARY LEGAL FORMALITIES, INCLUDING,