QUALIFICATIONS,
LIMITATIONS AND EXCEPTIONS ACCEPTABLE TO LENDER), AMONG OTHER REQUIREMENTS OF
LENDER, THAT: (1) THE UNANIMOUS CONSENT OF THE SINGLE MEMBER AND THE INDEPENDENT
MANAGER IS REQUIRED IN ORDER FOR THE APPLICABLE BORROWER TO FILE A VOLUNTARY
BANKRUPTCY PETITION; (2) THE PROVISION IN ORGANIZATIONAL DOCUMENTS THAT REQUIRES
UNANIMOUS CONSENT AS A CONDITION TO FILING A VOLUNTARY BANKRUPTCY PETITION IS
ENFORCEABLE AGAINST THE SINGLE MEMBER; (3) THE BANKRUPTCY, DISSOLUTION,
LIQUIDATION OR DEATH OF THE SINGLE MEMBER WILL NOT CAUSE THE APPLICABLE BORROWER
TO BE DISSOLVED; (4) NO CREDITOR OF THE SINGLE MEMBER SHALL HAVE THE RIGHT TO
OBTAIN POSSESSION OF, OR OTHERWISE EXERCISE LEGAL OR EQUITABLE REMEDIES WITH
RESPECT TO, THE APPLICABLE BORROWER'S PROPERTY; AND (5) DELAWARE LAW, NOT
FEDERAL LAW, GOVERNS THE DETERMINATION OF WHAT PERSONS OR ENTITIES HAVE THE
AUTHORITY TO FILE A VOLUNTARY BANKRUPTCY PETITION ON BEHALF OF THE APPLICABLE
BORROWER;
(II)
THE ORGANIZATIONAL DOCUMENTS PROVIDE AND
SHALL AT ALL TIMES CONTINUE TO PROVIDE THAT BORROWER SHALL NOT CAUSE, PERMIT, OR
EMPOWER THE SINGLE MEMBER, MANAGER, OR ANY OTHER PERSON TO CONSOLIDATE OR MERGE
BORROWER INTO ANY OTHER ENTITY, OR, WITHOUT THE AFFIRMATIVE VOTE AND EXPRESS
WRITTEN AUTHORIZATION OF ALL MEMBERS OR PARTNERS OF BORROWER AND THE INDEPENDENT
DIRECTOR/MANAGER, TO INSTITUTE PROCEEDINGS TO HAVE BORROWER ADJUDICATED BANKRUPT
OR INSOLVENT, OR CONSENT TO THE INSTITUTION OF BANKRUPTCY OR INSOLVENCY
PROCEEDINGS AGAINST BORROWER OR FILE A PETITION SEEKING OR CONSENT TO,
REORGANIZATION OR RELIEF WITH RESPECT TO BORROWER UNDER ANY APPLICABLE FEDERAL
OR STATE LAW RELATING TO BANKRUPTCY, OR CONSENT TO THE APPOINTMENT OF A
RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, SEQUESTRATOR (OR OTHER SIMILAR
OFFICIAL) OF BORROWER OR A SUBSTANTIAL PART OF BORROWER'S PROPERTY, OR MAKE ANY
ASSIGNMENT FOR THE BENEFIT OF CREDITORS OF BORROWER, OR ADMIT IN WRITING
BORROWER'S INABILITY TO PAY ITS DEBTS GENERALLY AS THEY BECOME DUE, OR TAKE
ACTION IN FURTHERANCE OF ANY SUCH ACTION; AND
(JJ)
THE BORROWER ORGANIZATIONAL DOCUMENTS
PROVIDE AND SHALL AT ALL TIMES CONTINUE TO PROVIDE (I) THAT BORROWER SHALL AT
ALL TIMES MAINTAIN AN ARMS-LENGTH RELATIONSHIP WITH ANY AFFILIATES OF BORROWER,
(II) THAT BORROWER SHALL AT ALL TIMES MAINTAIN INDEPENDENT MANAGEMENT OVER ITS
DAILY BUSINESS AFFAIRS, FREE FROM ANY CONTROL EXERCISED BY ANY AFFILIATE OF
BORROWER, AND (III) THAT TO THE EXTENT THAT CONTROL OF BORROWER IS EXERCISED BY
ANY MANAGER, AND THE SAME INDIVIDUAL ACTS AS MANAGER OR SIMILAR CONTROL PERSON
WITH RESPECT TO ANY AFFILIATE OF BORROWER, SUCH INDIVIDUAL WILL ACT IN
ACCORDANCE WITH THE SEPARATENESS REQUIREMENTS OF THE LOAN DOCUMENTS AND BORROWER
ORGANIZATIONAL DOCUMENTS, INCLUDING, WITHOUT LIMITATION (A) AN EXPRESS
REQUIREMENT UNDER THE BORROWER ORGANIZATIONAL DOCUMENTS THAT THE MANAGER OF
BORROWER MAKE ALL DECISIONS REGARDING THE BUSINESS OF BORROWER INDEPENDENT OF,
AND NOT DICTATED BY, ANY AFFILIATE OF THE BORROWER, AND (B) THE PROVISIONS OF
THE LOAN DOCUMENTS AND THE BORROWER ORGANIZATIONAL DOCUMENTS RELATING TO
TRANSACTIONS WITH AFFILIATES OF BORROWER AND CONFLICTS OF INTEREST.
108
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1.
SURVIVAL.
THIS AGREEMENT AND ALL
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES MADE HEREIN AND IN THE
CERTIFICATES DELIVERED PURSUANT