BEEN AND REMAIN DULY
AUTHORIZED BY ALL NECESSARY ACTION AND DO NOT CONTRAVENE ANY PROVISION OF ITS
CERTIFICATE OF INCORPORATION OR BY LAWS (OR EQUIVALENT ORGANIZATIONAL DOCUMENTS)
OR ANY LAW, REGULATION OR CONTRACTUAL RESTRICTION BINDING ON OR AFFECTING IT OR
ITS PROPERTY;
(III)
ALL CONSENTS, AUTHORIZATIONS AND APPROVALS REQUIRED FOR THE
EXECUTION AND DELIVERY BY THE ACCEPTABLE COUNTERPARTY OF THE RATE CAP OR THE
REPLACEMENT RATE CAP, AS APPLICABLE, AND ANY OTHER AGREEMENT WHICH THE
ACCEPTABLE COUNTERPARTY HAS EXECUTED AND DELIVERED PURSUANT THERETO, AND THE
PERFORMANCE OF ITS OBLIGATIONS THEREUNDER HAVE BEEN OBTAINED AND REMAIN IN FULL
FORCE AND EFFECT, ALL CONDITIONS THEREOF HAVE BEEN DULY COMPLIED WITH, AND NO
OTHER ACTION BY, AND NO NOTICE TO OR FILING WITH ANY GOVERNMENTAL AUTHORITY OR
REGULATORY BODY IS REQUIRED FOR SUCH EXECUTION, DELIVERY OR PERFORMANCE; AND
(IV)
THE RATE CAP OR THE REPLACEMENT CAP, AS APPLICABLE, AND ANY OTHER
AGREEMENT WHICH THE ACCEPTABLE COUNTERPARTY HAS EXECUTED AND DELIVERED PURSUANT
THERETO, HAS BEEN DULY EXECUTED AND DELIVERED BY THE ACCEPTABLE COUNTERPARTY AND
CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF THE ACCEPTABLE
COUNTERPARTY, ENFORCEABLE AGAINST THE ACCEPTABLE COUNTERPARTY IN ACCORDANCE WITH
ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY AND SIMILAR LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY, AND SUBJECT, AS TO ENFORCEABILITY, TO
GENERAL PRINCIPLES OF EQUITY (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN A
PROCEEDING IN EQUITY OR AT LAW).
72
Section 5.25.
MANAGER OF FLINT PROPERTY
The initial Manager of the Flint Property as of the Closing Date is Flagstone.
Borrower anticipates entering into with Interstate a new Management Agreement
("Flint Interstate Management Agreement") in the exact same form as the form in
place on the Closing Date with Interstate on the other Interstate Properties.
On or before December 31, 2003, Borrower shall provide Lender with a copy of the
executed Flint Interstate Management Agreement as well as the Assignment of
Management Agreement in the form delivered on the Closing Date and executed by
Interstate for the other Interstate Managed Properties.
Section 5.26.
CONSOLIDATED TANGIBLE NET WORTH
Borrower Principal shall not permit the Consolidated Tangible Net Worth of
Borrower Principal and its Subsidiaries on a consolidated basis at any time to
be less than the sum of $150,000,000 plus the cost basis of the Properties
subject to the Lien of the Mortgage at such time as set forth on Schedule III
hereof minus the aggregate then outstanding principal balance of the Loan and
Mezzanine Loan.
ARTICLE 6
ENTITY COVENANTS
Section 6.1.
SINGLE PURPOSE ENTITY/SEPARATENESS
Until the Debt has been paid in full, Borrower represents, warrants and
covenants as follows:
(A)
BORROWER HAS NOT AND WILL NOT:
(I)
ENGAGE IN ANY BUSINESS OR ACTIVITY OTHER THAN THE OWNERSHIP,
OPERATION AND MAINTENANCE OF THE PROPERTIES, AND ACTIVITIES INCIDENTAL THERETO;
(II)
ACQUIRE OR OWN ANY ASSETS OTHER THAN (A) THE PROPERTIES, AND (B)
SUCH INCIDENTAL PERSONAL PROPERTY AS MAY BE NECESSARY FOR THE OPERATION OF EACH
PROPERTY;
(III)
MERGE INTO OR CONSOLIDATE WITH ANY PERSON, OR DISSOLVE,
TERMINATE, LIQUIDATE IN WHOLE OR IN PART,