OR REMEDY
HEREUNDER ON ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A BAR TO ANY RIGHT OR
REMEDY WHICH THE LENDER WOULD OTHERWISE HAVE ON ANY FUTURE OCCASION.
THE RIGHTS
AND REMEDIES HEREIN PROVIDED ARE CUMULATIVE, MAY BE EXERCISED SINGLY OR
CONCURRENTLY AND ARE NOT EXCLUSIVE OF ANY RIGHTS OR REMEDIES PROVIDED BY LAW.
19.
SPE PROVISIONS.
EACH OF THE PROPERTY PLEDGORS AND MEZZANINE
SUBSIDIARY PLEDGORS HEREBY REPRESENTS, COVENANTS AND AGREES AS FOLLOWS:
(A)
EACH PROPERTY PLEDGOR AND MEZZANINE SUBSIDIARY PLEDGOR HAS NOT AND
WILL NOT:
(I)
ENGAGE IN ANY BUSINESS OR ACTIVITY OTHER THAN THE OWNERSHIP, OPERATION
AND MAINTENANCE OF THE MEZZANINE COLLATERAL THAT IT OWNS AND ACTIVITIES
INCIDENTAL THERETO;
(II)
ACQUIRE OR OWN ANY ASSETS OTHER THAN THE MEZZANINE COLLATERAL THAT IT
OWNS ON THE DATE HEREOF;
(III)
MERGE INTO OR CONSOLIDATE WITH ANY PERSON, OR DISSOLVE, TERMINATE,
LIQUIDATE IN WHOLE OR IN PART, TRANSFER OR OTHERWISE DISPOSE OF ALL OR
SUBSTANTIALLY ALL OF ITS ASSETS OR CHANGE ITS LEGAL STRUCTURE;
(IV)
FAIL TO OBSERVE ALL ORGANIZATIONAL FORMALITIES, OR FAIL TO PRESERVE ITS
EXISTENCE AS AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING (IF
APPLICABLE) UNDER THE APPLICABLE LEGAL REQUIREMENTS OF THE JURISDICTION OF ITS
ORGANIZATION OR FORMATION, OR AMEND, MODIFY, TERMINATE OR FAIL TO COMPLY WITH
THE PROVISIONS OF ITS ORGANIZATIONAL DOCUMENTS;
(V)
OWN ANY SUBSIDIARY, OR MAKE ANY INVESTMENT IN, ANY PERSON, EXCEPT AS
CONTEMPLATED HEREBY;
(VI)
COMMINGLE ITS ASSETS WITH THE ASSETS OF ANY OTHER PERSON OR PERMIT ANY
AFFILIATE OR CONSTITUENT PARTY INDEPENDENT ACCESS TO ITS BANK ACCOUNTS EXCEPT
THAT EACH SUCH PLEDGOR MAY REMIT FUNDS TO AN ACCOUNT HELD BY THE BORROWER AS TO
WHICH THE BORROWER MAINTAINS ACCURATE BOOKS AND RECORDS AS TO THE FUNDS
ATTRIBUTABLE TO SUCH PLEDGOR;
(VII)
INCUR ANY DEBT, SECURED OR UNSECURED, DIRECT OR CONTINGENT (INCLUDING
GUARANTEEING ANY OBLIGATION), OTHER THAN THE GUARANTEED OBLIGATIONS;
(VIII)
FAIL TO MAINTAIN ITS RECORDS, BOOKS OF ACCOUNT, BANK ACCOUNTS, FINANCIAL
STATEMENTS, ACCOUNTING RECORDS AND OTHER ENTITY DOCUMENTS SEPARATE AND APART
FROM THOSE OF ANY OTHER PERSON; EXCEPT THAT PLEDGOR'S FINANCIAL POSITION,
ASSETS, LIABILITIES, NET WORTH AND OPERATING RESULTS MAY BE INCLUDED IN THE
CONSOLIDATED FINANCIAL STATEMENTS OF AN AFFILIATE, PROVIDED THAT SUCH
CONSOLIDATED FINANCIAL STATEMENTS CONTAIN A FOOTNOTE INDICATING THAT PLEDGOR IS
A SEPARATE LEGAL ENTITY AND THAT IT MAINTAINS SEPARATE BOOKS AND RECORDS;
(IX)
ENTER INTO ANY CONTRACT OR AGREEMENT WITH ANY GENERAL PARTNER, MEMBER,
SHAREHOLDER, PRINCIPAL, GUARANTOR OF THE OBLIGATIONS OF PLEDGOR, OR ANY
AFFILIATE OF THE FOREGOING,
11
EXCEPT UPON TERMS AND CONDITIONS THAT ARE INTRINSICALLY FAIR, COMMERCIALLY
REASONABLE AND SUBSTANTIALLY SIMILAR TO THOSE THAT WOULD BE AVAILABLE ON AN
ARM'S-LENGTH BASIS WITH UNAFFILIATED THIRD PARTIES;
(X)
MAINTAIN ITS ASSETS IN SUCH A MANNER THAT IT WILL BE COSTLY OR DIFFICULT
TO SEGREGATE, ASCERTAIN OR IDENTIFY ITS INDIVIDUAL ASSETS FROM THOSE OF ANY
OTHER PERSON;
(XI)
ASSUME OR GUARANTY THE DEBTS OF ANY OTHER PERSON, HOLD ITSELF OUT TO BE
RESPONSIBLE FOR THE DEBTS OF ANY OTHER PERSON, OR OTHERWISE PLEDGE ITS ASSETS
FOR THE