BORROWER HAS NOT AND SHALL NOT BUY OR HOLD EVIDENCE OF
INDEBTEDNESS ISSUED BY ANY OTHER PERSON (OTHER THAN CASH OR INVESTMENT‐GRADE
SECURITIES OR PERMITTED INVESTMENTS OR TO THE EXTENT OTHERWISE PERMITTED
PURSUANT TO SUB-PARAGRAPH (V) ABOVE);
(BB)
BORROWER HAS COMPLIED AND SHALL COMPLY WITH ALL ORGANIZATIONAL
FORMALITIES NECESSARY TO MAINTAIN ITS SEPARATE EXISTENCE, AND BORROWER SHALL NOT
TERMINATE OR FAIL TO COMPLY WITH THE PROVISIONS OF SECTION 9 OF ITS OPERATING
AGREEMENT;
(CC)
BORROWER HAS, AND SHALL HAVE, NO MATERIAL CONTINGENT OR ACTUAL
OBLIGATIONS NOT RELATED TO THE PROPERTY;
(DD)
INTENTIONALLY OMITTED;
58
(EE)
FROM AND AFTER THE DATE HEREOF, BORROWER'S ORGANIZATIONAL
DOCUMENTS SHALL PROVIDE THAT THERE SHALL BE (AND BORROWER SHALL AT ALL TIMES
CAUSE THERE TO BE) AT LEAST TWO (2) DULY APPOINTED INDEPENDENT MANAGERS;
(FF)
FROM AND AFTER THE DATE HEREOF, BORROWER'S ORGANIZATIONAL
DOCUMENTS SHALL PROVIDE THAT AS LONG AS ANY PORTION OF THE OBLIGATIONS REMAINS
OUTSTANDING:
(I)
BORROWER WILL NOT CAUSE OR ALLOW MANAGERS OF THE BORROWER TO
TAKE ANY ACTION WHICH, UNDER THE BORROWER'S CERTIFICATE OF FORMATION OR
OPERATING AGREEMENT, REQUIRES THE UNANIMOUS AFFIRMATIVE VOTE OF ONE HUNDRED
PERCENT (100%) OF THE BORROWER'S MANAGERS UNLESS AT THE TIME OF SUCH ACTION
THERE ARE AT LEAST TWO (2) INDEPENDENT MANAGERS THEN SERVING IN SUCH CAPACITY
AND EACH INDEPENDENT MANAGER HAS PARTICIPATED IN SUCH VOTE;
(II)
NO RESIGNATION OR REMOVAL OF AN INDEPENDENT MANAGER, AND NO
APPOINTMENT OF A SUCCESSOR INDEPENDENT MANAGER, SHALL BE EFFECTIVE UNTIL SUCH
SUCCESSOR SHALL HAVE EXECUTED A COUNTERPART TO THE BORROWER'S OPERATING
AGREEMENT; PROVIDED, HOWEVER, THAT NO INDEPENDENT MANAGER SHALL RESIGN OR BE
REMOVED, AND NO SUCCESSOR INDEPENDENT MANAGER SHALL BE APPOINTED, WITHOUT IN
EACH CASE AT LEAST FIVE (5) DAY'S PRIOR WRITTEN NOTICE TO THE LENDER;
(III)
IN THE EVENT OF A VACANCY IN THE POSITION OF INDEPENDENT
MANAGER, THE MEMBERS OF BORROWER SHALL, SUBJECT TO THE PRECEDING CLAUSE (II),
APPOINT A SUCCESSOR INDEPENDENT MANAGER AS SOON AS PRACTICABLE;
(IV)
TO THE FULLEST EXTENT PERMITTED BY LAW, THE INDEPENDENT
MANAGERS SHALL CONSIDER ONLY THE INTERESTS OF BORROWER, INCLUDING THE LENDER AND
ITS OTHER CREDITORS, AND NOT THE INTERESTS OF ANY MEMBER OF BORROWER OR ANY
OTHER DIRECT OR INDIRECT BENEFICIAL OWNER OF BORROWER, IN ACTING OR OTHERWISE
VOTING ON THE MATTERS REFERRED TO IN CLAUSES (HH)(V)(C) OR (HH)(V)(D)
BELOW OF
THIS SECTION 5.1.4;
(V)
BORROWER WILL NOT:
(A)
DISSOLVE, MERGE, LIQUIDATE OR CONSOLIDATE, EXCEPT AS PROVIDED IN
CLAUSE (HH)(VI) BELOW;
(B)
EXCEPT IN CONNECTION WITH A SALE OR OTHER TRANSFER PERMITTED
UNDER THE LOAN DOCUMENTS, SELL ALL OR SUBSTANTIALLY ALL OF ITS ASSETS;
(C)
AMEND ITS ORGANIZATIONAL DOCUMENTS WITH RESPECT TO THE MATTERS
SET FORTH IN THIS SECTION 5.1.4 (I) WITHOUT THE AFFIRMATIVE VOTE OF ITS TWO (2)
INDEPENDENT MANAGERS AND (II) UNLESS LENDER HAS CONSENTED (IT BEING UNDERSTOOD
THAT FOLLOWING A SECURITIZATION OF THE LOAN, SUCH CONSENT MAY BE CONDITIONED ON
THE APPLICABLE RATING AGENCIES HAVING ISSUED A RATING AGENCY CONFIRMATION IN
CONNECTION THEREWITH);
59
(D)
WITHOUT THE AFFIRMATIVE VOTE OF ITS TWO (2) INDEPENDENT MANAGER
AND