ANY MEMBER, GENERAL PARTNER, PRINCIPAL
OR AFFILIATE THEREOF);
(XVII)
FAIL TO ENDEAVOR TO MAINTAIN ADEQUATE CAPITAL FOR THE NORMAL
OBLIGATIONS REASONABLY FORESEEABLE IN A BUSINESS OF ITS SIZE AND CHARACTER AND
IN LIGHT OF ITS CONTEMPLATED BUSINESS OPERATIONS; PROVIDED, HOWEVER, THE
FOREGOING SHALL NOT REQUIRE ANY PARTNER IN A BORROWER ENTITY TO MAKE ANY CAPITAL
CONTRIBUTIONS TO SUCH BORROWER ENTITY;
(XVIII)
SHARE ANY COMMON LOGO WITH OR HOLD ITSELF OUT AS OR BE CONSIDERED
AS A DEPARTMENT OR DIVISION OF (A) ANY GENERAL PARTNER, PRINCIPAL, MEMBER OR
AFFILIATE OF ANY BORROWER ENTITY OR OF ANY PRINCIPAL, AS THE CASE MAY BE, (B)
ANY AFFILIATE OF A GENERAL PARTNER, PRINCIPAL OR MEMBER OF ANY BORROWER ENTITY
OR OF ANY PRINCIPAL, AS THE CASE MAY BE, OR (C) ANY OTHER PERSON;
(XIX)
FAIL TO ALLOCATE FAIRLY AND REASONABLY ANY OVERHEAD EXPENSES THAT
ARE SHARED WITH AN AFFILIATE, INCLUDING PAYING FOR OFFICE SPACE AND SERVICES
PERFORMED BY ANY EMPLOYEE OF AN AFFILIATE;
(XX)
PLEDGE ITS ASSETS FOR THE BENEFIT OF ANY OTHER PERSON, AND WITH
RESPECT TO BORROWER, OTHER THAN WITH RESPECT TO THE LOAN;
(XXI)
[INTENTIONALLY OMITTED];
(XXII)
FAIL TO PROVIDE IN ITS (I) LIMITED LIABILITY COMPANY AGREEMENT, IF
IT IS A LIMITED LIABILITY COMPANY, (II) LIMITED PARTNERSHIP AGREEMENT, IF IT IS
A LIMITED PARTNERSHIP OR (III) CERTIFICATE OF INCORPORATION, IF IT IS A
CORPORATION, THAT FOR SO LONG AS THE LOAN IS OUTSTANDING PURSUANT TO THE NOTE,
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, IT SHALL NOT FILE OR CONSENT TO THE
FILING OF ANY PETITION, EITHER VOLUNTARY OR INVOLUNTARY, TO TAKE ADVANTAGE OF
ANY APPLICABLE INSOLVENCY, BANKRUPTCY, LIQUIDATION OR REORGANIZATION STATUTE, OR
MAKE AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS WITHOUT THE AFFIRMATIVE VOTE OF
THE INDEPENDENT DIRECTOR AND OF ALL OTHER GENERAL PARTNERS/MANAGING
MEMBERS/DIRECTORS;
(XXIII)
FAIL TO HOLD ITS ASSETS IN ITS OWN NAME;
(XXIV)
IF ANY BORROWER ENTITY OR PRINCIPAL IS A CORPORATION, FAIL TO
CONSIDER THE INTERESTS OF SUCH CORPORATION'S CREDITORS IN CONNECTION WITH ALL
CORPORATE ACTIONS TO THE EXTENT PERMITTED BY APPLICABLE LAW;
(XXV)
HAVE ANY OF ITS OBLIGATIONS GUARANTEED BY AN AFFILIATE, EXCEPT IN
CONNECTION WITH THE LOAN; AND
(XXVI)
VIOLATE OR CAUSE TO BE VIOLATED THE ASSUMPTIONS MADE WITH RESPECT
TO THE BORROWER ENTITIES AND THEIR RESPECTIVE PRINCIPALS IN THE INSOLVENCY
OPINION.
66
(B)
BORROWER COVENANTS AND AGREES THAT, IF ANY BORROWER ENTITY IS A
SINGLE MEMBER LIMITED LIABILITY COMPANY THAT COMPLIES WITH THE REQUIREMENTS OF
SECTION 4.1.35(D) BELOW, ITS ORGANIZATIONAL DOCUMENTS SHALL PROVIDE THAT SUCH
BORROWER ENTITY SHALL NOT, AND IF ANY BORROWER ENTITY IS NOT A SINGLE MEMBER
LIMITED LIABILITY COMPANY THAT COMPLIES WITH THE REQUIREMENTS OF SECTION
4.1.35(D) BELOW, THE ORGANIZATIONAL DOCUMENTS OF SUCH BORROWER ENTITY'S
PRINCIPAL SHALL PROVIDE THAT SUCH PRINCIPAL SHALL NOT, FAIL AT ANY TIME TO HAVE
AT LEAST ONE INDEPENDENT MANAGER OR DIRECTOR (THE "INDEPENDENT DIRECTOR") THAT
IS NOT AND HAS NOT BEEN FOR AT LEAST FIVE (5) YEARS:
(I) A STOCKHOLDER,
DIRECTOR, OFFICER, EMPLOYEE, PARTNER, MEMBER, ATTORNEY OR COUNSEL OF SUCH
BORROWER ENTITY OR OF