LIMITED PARTNERSHIP, HAS A LIMITED PARTNERSHIP AGREEMENT, (C) A CORPORATION, HAS
A CERTIFICATE OR ARTICLES OF INCORPORATION AND BYLAWS, AS APPLICABLE, OR (D) A
DELAWARE STATUTORY TRUST, HAS ORGANIZATIONAL DOCUMENTS THAT, IN EACH CASE,
PROVIDE THAT 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;
(X)
HAS NOT ENTERED INTO OR BEEN A PARTY TO, AND WILL NOT ENTER INTO
OR BE A PARTY TO, ANY TRANSACTION WITH ITS PARTNERS, MEMBERS, BENEFICIARIES,
SHAREHOLDERS OR AFFILIATES EXCEPT (A) IN THE ORDINARY COURSE OF ITS BUSINESS AND
ON TERMS WHICH ARE INTRINSICALLY FAIR, COMMERCIALLY REASONABLE AND ARE NO LESS
FAVORABLE TO IT THAN WOULD BE OBTAINED IN A COMPARABLE ARM'S-LENGTH TRANSACTION
WITH AN UNRELATED THIRD PARTY AND (B) IN CONNECTION WITH THIS AGREEMENT;
(XI)
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;
(XII)
HAS NOT FAILED AND WILL NOT FAIL TO CORRECT ANY KNOWN
MISUNDERSTANDING REGARDING THE SEPARATE IDENTITY OF SUCH ENTITY;
(XIII)
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;
(XIV)
HAS MAINTAINED AND WILL MAINTAIN ITS OWN RESOLUTIONS AND
AGREEMENTS;
(XV)
(A) HAS NOT COMMINGLED AND WILL NOT COMMINGLE ITS FUNDS OR ASSETS
WITH THOSE OF ANY OTHER PERSON 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 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 PROPERTY AND BORROWER;
(XVI)
HAS HELD AND WILL HOLD ITS ASSETS IN ITS OWN NAME;
(XVII)
HAS CONDUCTED AND WILL CONDUCT ITS BUSINESS IN ITS NAME OR IN A
NAME FRANCHISED OR LICENSED TO IT BY AN ENTITY OTHER THAN AN AFFILIATE OF
BORROWER;
(XVIII)
HAS MAINTAINED AND WILL MAINTAIN ITS BALANCE SHEETS, OPERATING
STATEMENTS AND OTHER ENTITY