INCORPORATION,
BY-LAWS, CERTIFICATE OF FORMATION, OPERATING AGREEMENT OR ARTICLES OF
ORGANIZATION WITH RESPECT TO ANY COMMON STOCK, REQUIRES A VOTE OF THE BOARD OF
DIRECTORS OF BORROWER, OR, IF APPLICABLE, THE GENERAL PARTNER, UNLESS AT THE
TIME OF SUCH ACTION THERE SHALL BE AT LEAST TWO (2) MEMBERS, WITH RESPECT TO
BORROWER, WHO IS OR ARE INDEPENDENT DIRECTORS.
(XVIII)
BORROWER AND, IF APPLICABLE, EACH GENERAL PARTNER HAS PAID AND
SHALL PAY THE SALARIES OF THEIR OWN EMPLOYEES AND HAS MAINTAINED AND SHALL
MAINTAIN A SUFFICIENT NUMBER OF EMPLOYEES IN LIGHT OF THEIR CONTEMPLATED
BUSINESS OPERATIONS.
(XIX)
BORROWER SHALL, AND SHALL CAUSE ITS AFFILIATES TO, CONDUCT THEIR
BUSINESS SO THAT THE ASSUMPTIONS MADE WITH RESPECT TO BORROWER AND, IF
APPLICABLE, EACH GENERAL PARTNER, IN THAT CERTAIN OPINION LETTER RELATING TO
SUBSTANTIVE NON-CONSOLIDATION DATED THE DATE HEREOF (THE "INSOLVENCY OPINION")
DELIVERED IN CONNECTION WITH THE LOAN SHALL BE TRUE AND CORRECT IN ALL RESPECTS.
Notwithstanding anything to the contrary contained in this Section 2.02(g),
provided Borrower is a Delaware limited liability company which satisfies the
single purpose bankruptcy remote entity requirements of each Rating Agency for a
single member limited liability company, the foregoing provisions of this
Section 2.02(g) shall not apply to the General Partner.
(H)
NO DEFAULTS.
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD OCCUR AS A RESULT OF THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS.
BORROWER IS NOT IN DEFAULT IN THE PAYMENT
OR PERFORMANCE OF ANY OF ITS CONTRACTUAL OBLIGATIONS IN ANY RESPECT.
(I)
CONSENTS AND APPROVALS.
BORROWER AND, IF APPLICABLE, EACH
GENERAL PARTNER, HAVE OBTAINED OR MADE ALL NECESSARY (I) CONSENTS, APPROVALS AND
AUTHORIZATIONS, AND REGISTRATIONS AND FILINGS OF OR WITH ALL GOVERNMENTAL
AUTHORITIES AND (II) CONSENTS, APPROVALS, WAIVERS AND NOTIFICATIONS OF PARTNERS,
STOCKHOLDERS, MEMBERS, CREDITORS, LESSORS AND OTHER NONGOVERNMENTAL PERSONS, IN
EACH CASE, WHICH ARE REQUIRED TO BE OBTAINED OR MADE BY BORROWER OR, IF
APPLICABLE, THE GENERAL PARTNER, IN CONNECTION WITH THE EXECUTION AND DELIVERY
OF, AND THE PERFORMANCE BY BORROWER OF ITS OBLIGATIONS UNDER, THE LOAN
DOCUMENTS.
(J)
INVESTMENT COMPANY ACT STATUS, ETC.
BORROWER IS NOT (I) AN
"INVESTMENT COMPANY," OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY," AS
SUCH TERMS ARE DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, (II) A
"HOLDING COMPANY" OR A "SUBSIDIARY COMPANY" OF A "HOLDING COMPANY" OR AN
"AFFILIATE" OF EITHER A "HOLDING COMPANY" OR A "SUBSIDIARY COMPANY" WITHIN THE
MEANING OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED, OR (III)
SUBJECT TO ANY OTHER FEDERAL OR STATE LAW OR REGULATION WHICH PURPORTS TO
RESTRICT OR REGULATE ITS ABILITY TO BORROW MONEY.
8
(K)
COMPLIANCE WITH LAW.
BORROWER IS AND SHALL REMAIN IN COMPLIANCE
IN ALL MATERIAL RESPECTS WITH ALL LEGAL REQUIREMENTS TO WHICH IT OR THE
COLLATERAL ARE SUBJECT, INCLUDING, WITHOUT LIMITATION, ERISA.
(L)
TRANSACTION BROKERAGE FEES.
BORROWER HAS NOT DEALT WITH ANY
FINANCIAL ADVISORS, BROKERS, UNDERWRITERS, PLACEMENT AGENTS, AGENTS OR FINDERS
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
BORROWER