Common use of Limitations on the Company’s Activities Clause in Contracts

Limitations on the Company’s Activities. (i) This Section 9j is being adopted in order to comply with certain provisions required in order to qualify the Company as a "special purpose entity" for the purpose of the Indebtedness. (ii) The Member shall not, so long as any Indebtedness is outstanding, amend, alter, change or repeal the definition of "Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26 or 31 or Schedule A of this ---------- Agreement without the unanimous written consent of the Board (including the Independent Director). Subject to this Section 9j, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 31. (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member or the Board, so long as any Indebtedness is outstanding none of the Company, the Member or the Board shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member and the Board (including the Independent Director), to institute proceedings to have the Company be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Company or file a petition seeking, or consent to, reorganization or relief with respect to the Company 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 the Company or a substantial part of its property, or make any assignment for the benefit of creditors of the Company, or admit in writing the Company's inability to pay its debts generally as they become due, or, to the fullest extent permitted by law, take action in furtherance of any such action, or dissolve or liquidate the Company, or consolidate or merge the Company with or into any Person, or sell all or substantially all of the assets of the Company; provided, however, that the foregoing is subject in -------- ------- all cases to Section 843(e) of the Statute. (iv) Unless otherwise provided in the Note Issuance Documents, so long as any Indebtedness is outstanding, the Board and the Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to -------- ------- preserve any such right or franchise if: (A) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the holders of the Indebtedness and the Company shall deliver to the Note Trustee an Officer's Certificate to that effect and (B) the Rating Agency Condition is satisfied. The Board also shall cause the Company to: (1) maintain its own separate books and records and bank accounts; (2) at all times hold itself out to the public as a legal entity separate from the Member and any other Person; (3) have a Board composed differently from that of the Member and any other Person; (4) file its own tax returns, if any, as may be required under applicable law, to the extent not part of a consolidated group filing a consolidated return or returns, and pay any taxes required to be paid under applicable law; (5) not commingle its assets with assets of any other Person (except as contemplated by the Basic Documents); (6) conduct its business in its own name; (7) maintain separate financial statements; (8) pay its own liabilities only out of its own funds; (9) maintain an arm's length relationship with its Affiliates and its Member; (10) pay the salaries of its own employees, if any; (11) not hold out its credit as being available to satisfy the obligations of others; (12) allocate fairly and reasonably any overhead for shared office space; (13) use separate stationery, invoices and checks; (14) not pledge its assets for the benefit of any other Person; (15) correct any known misunderstanding regarding its separate identity; (16) maintain adequate capital in light of its contemplated business purposes; (17) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and (18) not acquire any obligations or securities of a Member. (v) So long as any Indebtedness is outstanding, the Board shall not cause or permit the Company to: (1) guarantee any obligation of any Person, including any Affiliate; (2) engage, directly or indirectly, in any business other than that arising out of the issuance of the Indebtedness or the actions required or permitted to be performed under Section 7, the Note Issuance Documents or this Section 9j; (3) incur, create or assume any indebtedness other than the Indebtedness or as otherwise expressly permitted under the Note Issuance Documents; (4) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person other than the instruments constituting part of the Collateral, except that the Company may invest in those investments permitted under the Note Issuance Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Note Issuance Documents and permit the same to remain outstanding in accordance with such provisions; (5) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Note Issuance Documents; or (6) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).

Limitations on the Company’s Activities. (i) This Section 9j 9(b) is being adopted in order to comply with certain provisions required in order to qualify the Company as a "special purpose entity" for the purpose of the Indebtedness. So long as any portion of the Indebtedness is outstanding the provisions of this Section 9(b) shall supercede and control any other provision hereof to the contrary. (ii) The Member shall not, so long as any Indebtedness is outstanding, amend, alter, change or repeal the definition of "Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26 or 31 or Schedule A 30 of this ---------- Agreement without the unanimous written consent of Lender, or after a securitization of the Board Loan, only upon (including a) confirmation from each Rating Agency that such action would not result in the Independent Director). Subject qualification, withdrawal or downgrade of any securities rating assigned in such securitization, and (b) Lender's consent to this Section 9j, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 31such action. (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member Company or the BoardMember, so long as any Indebtedness is outstanding none of outstanding, neither the Company, Company nor the Member or the Board shall be authorized or empowered, nor shall they permit the Company, Company without the prior unanimous written consent of the Member and the Board (including the Independent Director)unanimous consent of the board of directors of the Member, to institute proceedings to have the Company be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Company or file a petition seeking, or consent to, reorganization or relief with respect to the Company 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 the Company or a substantial part of its property, or make any assignment for the benefit of creditors of the Company, or admit in writing the Company's inability to pay its debts generally as they become due, or, to the fullest extent permitted by law, take action in furtherance of any such action, or dissolve or liquidate the Company, or consolidate or merge the Company with or into any Person, or sell all or substantially all of the assets of the Company; provided, however, that the foregoing is subject in -------- ------- all cases to Section 843(e) of the Statute. (iv) Unless otherwise provided in the Note Issuance DocumentsLoan Agreement, so long as any Indebtedness is outstanding, the Board and the Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to -------- ------- preserve any such right or franchise if: (A) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the holders of the Indebtedness and the Company shall deliver to the Note Trustee an Officer's Certificate to that effect and (B) the Rating Agency Condition is satisfied. The Board Member also shall cause the Company to: (1) maintain its own separate books and records and bank accounts; (2) at all times hold itself out to the public as a legal entity separate from the Member and any other PersonPerson and not identify itself as a division of any other person or entity; (3) have a Board composed differently from that of the Member and any observe all limited liability company or other Personformalities; (4) file its own tax returnsreturns provided, if anyhowever, as that Company's assets may be included in a consolidated tax return of its parent companies if inclusion on such a consolidated tax return is required under to comply with the requirement of generally accepted accounting principles ("GAAP") or any other applicable law. Company shall maintain its books, to the extent not part of a consolidated group filing a consolidated return or returnsrecords, resolutions and pay any taxes required to be paid under applicable law;agreements as official records. (5) not commingle its assets with assets of any other Person (except as contemplated by the Basic Documents)and hold all of its assets in its own name; (6) conduct its business in its own name; (7) maintain all of its books, records, financial statements and bank accounts separate from those of any other person and Company's assets will not be listed as assets on the financial statements;statement of any other person; provided, however, that Company's assets may be included in a consolidated financial statement of its parent companies if inclusion on such a consolidated statements is required to comply with the requirements of GAAP, but only if (i) such consolidated financial statements shall contain a footnote to the effect that Company's assets are owned by Company and that they are being included on the financial statement of its parent solely to comply with the requirements of GAAP, and (ii) such assets shall be listed on Company's own separate balance sheet. (8) pay its own liabilities and expenses only out of its own funds; (9) maintain an arm's length relationship with its Affiliates and its MemberMember and enter into transactions with Affiliates only on a commercially reasonable basis; (10) pay the salaries of its own employees, if any;, from its own funds. (11) not hold out its credit as being available to satisfy the obligations of others; (12) allocate fairly and reasonably any overhead for shared office spacespace and services performed by any employee of an Affiliate; (13) use separate stationery, invoices and checkschecks bearing its own name; (14) not pledge its assets for the benefit of any other Person; (15) correct any known misunderstanding regarding its separate identity; (16) maintain adequate capital and a sufficient number of employees in light of its contemplated business purposesoperations; (17) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and (18) not acquire any obligations or securities of a its Affiliates, including the Member; and (18) not make loans to any other person or entity or to buy or hold evidence of indebtedness issued by any other person. (v) So long as any Indebtedness is outstanding, the Board Member shall not cause or permit the Company to: (1) guarantee any obligation of any Person, including any Affiliate; (2) engage, directly or indirectly, in any business other than that arising out of the issuance of the Indebtedness or the actions required or permitted to be performed under Section 7, the Note Issuance Documents Loan Agreement or this Section 9j9(b); (3) incur, create or assume any indebtedness other than the Indebtedness or as otherwise expressly permitted under the Note Issuance DocumentsLoan Agreement; (4) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person other than the instruments constituting part of the Collateral, except that the Company may invest in those investments permitted under the Note Issuance Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Note Issuance Documents and permit the same to remain outstanding in accordance with such provisionsPerson; (5) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Note Issuance DocumentsLoan Agreement; or (6) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).

Limitations on the Company’s Activities. (i) This Section 9j 8.9 is being adopted in order to comply with provide certain provisions required protection to the Special Managers in order to qualify the Company as a "special purpose entity" for the purpose respect of the IndebtednessRecourse Guaranties. (ii) The Member Unless the Managers and the Special Manager shall not, so long as any Indebtedness is outstanding, amend, alter, change or repeal the definition of "Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26 or 31 or Schedule A of this ---------- Agreement without the unanimous written consent of the Board (including the Independent Director). Subject have been removed pursuant to this Section 9j8.7, the Member reserves the right to shall not amend, alter, change or repeal any provisions contained in this Agreement without the written consent of the Managers and the Special Manager (which they may give or withhold in accordance with Section 31their sole discretion). (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member or the BoardManagers, so long as any Indebtedness is outstanding none of the Company, neither the Member or nor the Board Managers shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member Member, each Special Manager (in its sole discretion) and the Board Managers (including the Independent Directorin their sole discretion), to institute proceedings to have the Company be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Company or file a petition seeking, or consent to, reorganization or relief with respect to the Company 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 the Company or a substantial part of its property, or make any assignment for the benefit of creditors of the Company, or admit in writing the Company's inability to pay its debts generally as they become due, or, to the fullest extent permitted by law, take action in furtherance of any such action, or dissolve or liquidate the Company, or consolidate or merge the Company with or into any Person, or sell all or substantially all of the assets of the Company; provided, however, that Company and the foregoing is subject in -------- ------- all cases to the second sentence of Section 843(e) of the Statute8.3. (iv) Unless Notwithstanding any other provision of this Agreement and any provision of law that otherwise provided in so empowers the Note Issuance Documents, so long as any Indebtedness is outstandingCompany, the Board Member or the Managers, neither the Member nor the Managers shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member, each Special Manager (in its sole discretion) and the Member shall cause Managers (in their sole discretion), to institute proceedings to have Accotel Property be adjudicated bankrupt or insolvent, or consent to the Company institution of bankruptcy or insolvency proceedings against Accotel Property or file a petition seeking, or consent to, reorganization or relief with respect to do Accotel Property under any applicable federal or cause state law relating to be done all things necessary bankruptcy, or consent to preserve and keep the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of Accotel Property or a substantial part of its property, or make any assignment for the benefit of creditors of Accotel Property, or admit in full force and effect writing Accotel Property's inability to pay its existencedebts generally as they become due, rights (charter and statutory) and franchises; providedor, howeverto the fullest extent permitted by law, that the Company shall not be required to -------- ------- preserve take action in furtherance of any such right action, or franchise if: (A) dissolve or liquidate Accotel Property, or consolidate or merge Accotel Property with or into any Person, or sell all or substantially all of the Board shall determine that assets of Accotel Property and the preservation thereof foregoing is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous subject in any material respect all cases to the holders second sentence of the Indebtedness and the Company shall deliver to the Note Trustee an Officer's Certificate to that effect and Section 8.3. (Bv) the Rating Agency Condition is satisfied. The Board also Manager shall cause the Company to: (1a) maintain its own separate books and records and bank accounts; (2b) at all times hold itself out to the public as a legal entity separate from the Member Member, the Managers and any other Person; (3) have a Board composed differently from that of the Member and any other Person; (4c) file its own tax returns, if any, as may be required under applicable law, to the extent not part of a consolidated group filing a consolidated return or returns, and pay any taxes required to be paid under applicable law; (5d) not commingle its assets with assets of any other Person (except as contemplated by the Basic Documents)Person; (6e) conduct its business in its own name; (7f) maintain separate financial statements; (8) pay its own liabilities only out of its own funds; (9g) maintain an arm's length relationship with its Affiliates Affiliates, the Member and its Memberthe Managers; (10h) pay the salaries of its own employees, if any; (11i) not hold out its credit as being available to satisfy the obligations of others; (12j) allocate fairly and reasonably any overhead for shared office space; (13k) use separate stationery, invoices and checks; (14l) not pledge its assets for the benefit of any other PersonPerson (except as contemplated by the Loan Documents); (15m) correct any known misunderstanding regarding its separate identity; (16n) maintain adequate capital in light of its contemplated business purposes; (17o) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and (18p) not acquire any obligations or securities of a the Member. (v) So long as any Indebtedness is outstanding, the Board shall not cause or permit the Company to: (1) guarantee any obligation of any Person, including any Affiliate; (2) engage, directly or indirectly, in any business other than that arising out of the issuance of the Indebtedness or the actions required or permitted to be performed under Section 7, the Note Issuance Documents or this Section 9j; (3) incur, create or assume any indebtedness other than the Indebtedness or as otherwise expressly permitted under the Note Issuance Documents; (4) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person other than the instruments constituting part of the Collateral, except that the Company may invest in those investments permitted under the Note Issuance Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Note Issuance Documents and permit the same to remain outstanding in accordance with such provisions; (5) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Note Issuance Documents; or (6) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).

Limitations on the Company’s Activities. (i) This Section 9j 9(b) is being adopted in order to comply with certain provisions required in order to qualify the Company as a "special purpose entity" for the purpose of the Indebtedness. So long as any portion of the Indebtedness is outstanding the provisions of this Section 9(b) shall supercede and control any other provision hereof to the contrary. (ii) The Member shall not, so long as any Indebtedness is outstanding, amend, alter, change or repeal the definition of "Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26 or 31 or Schedule A 30 of this ---------- Agreement without the unanimous written consent of Lender, or after a securitization of the Board Loan, only upon (including a) confirmation from each Rating Agency that such action would not result in the Independent Director). Subject qualification, withdrawal or downgrade of any securities rating assigned in such securitization, and (b) Lender's consent to this Section 9j, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 31such action. (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member Company or the BoardMember, so long as any Indebtedness is outstanding none of outstanding, neither the Company, Company nor the Member or the Board shall be authorized or empowered, nor shall they permit the Company, Company without the prior unanimous written consent of the Member and the Board (including the Independent Director)unanimous consent of the board of directors of the Member, to institute proceedings to have the Company be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against the Company or file a petition seeking, or consent to, reorganization or relief with respect to the Company 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 the Company or a substantial part of its property, or make any assignment for the benefit of creditors of the Company, or admit in writing the Company's inability to pay its debts generally as they become due, or, to the fullest extent permitted by law, take action in furtherance of any such action, or dissolve or liquidate the Company, or consolidate or merge the Company with or into any Person, or sell all or substantially all of the assets of the Company; provided, however, that the foregoing is subject in -------- ------- all cases to Section 843(e) of the Statute. (iv) Unless otherwise provided in the Note Issuance DocumentsLoan Agreement, so long as any Indebtedness is outstanding, the Board Company shall, and the Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided. The Company shall, however, that the Company shall not be required to -------- ------- preserve any such right or franchise if: (A) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the holders of the Indebtedness and the Company shall deliver to the Note Trustee an Officer's Certificate to that effect and (B) the Rating Agency Condition is satisfied. The Board Member also shall cause the Company to: (1) maintain its own separate books and records and bank accounts; (2) at all times hold itself out to the public as a legal entity separate from the Member and any other PersonPerson and not identify itself as a division of any other person or entity; (3) have a Board composed differently from that of the Member and any observe all limited liability company or other Personformalities; (4) file its own tax returnsreturns provided, if anyhowever, as that Company's assets may be included in a consolidated tax return of its parent companies if inclusion on such a consolidated tax return is required under to comply with the requirement of generally accepted accounting principles ("GAAP") or any other applicable law. Company shall maintain its books, to the extent not part of a consolidated group filing a consolidated return or returnsrecords, resolutions and pay any taxes required to be paid under applicable law;agreements as official records. (5) not commingle its assets with assets of any other Person (except as contemplated by the Basic Documents)and hold all of its assets in its own name; (6) conduct its business in its own name; (7) maintain all of its books, records, financial statements and bank accounts separate from those of any other person and Company's assets and liabilities will not be listed as assets or liabilities on the financial statements;statement of any other person; provided, however, that Company's assets and liabilities may be included in a consolidated financial statement of its parent companies if inclusion on such a consolidated statements is required to comply with the requirements of GAAP, but only if (i) such consolidated financial statements shall contain a footnote to the effect that Company's assets and liabilities are owned by Company and that they are being included on the financial statement of its parent solely to comply with the requirements of GAAP, and (ii) such assets and liabilities shall be listed on Company's own separate balance sheet. (8) pay its own liabilities and expenses only out of its own funds; (9) maintain an arm's length relationship with its Affiliates and its MemberMember and enter into transactions with Affiliates only on a commercially reasonable basis; (10) pay the salaries of its own employees, if any;, from its own funds. (11) not hold out its credit as being available to satisfy the obligations of others; (12) allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for shared office spacespace and services performed by any employee of an Affiliate; (13) use separate stationery, invoices and checkschecks bearing its own name; (14) not pledge its assets for the benefit of any other Person; (15) correct any known misunderstanding regarding its separate identity; (16) maintain adequate capital and a sufficient number of employees in light of its contemplated business purposesoperations; (17) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and (18) not acquire any obligations or securities of a its Affiliates, including the Member; and (18) not make loans to any other person or entity or to buy or hold evidence of indebtedness issued by any other person. (v) So long as any Indebtedness is outstanding, the Board Company shall not, and the Member shall not cause or permit the Company to: (1) guarantee any obligation of any Person, including any Affiliate; ; (2) engage, directly or indirectly, in any business other than that arising out of the issuance of the Indebtedness or the actions required or permitted to be performed under Section 7, the Note Issuance Documents Loan Agreement or this Section 9j9(b); (3) incur, create or assume any indebtedness other than the Indebtedness or as otherwise expressly permitted under the Note Issuance DocumentsLoan Agreement; (4) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person other than the instruments constituting part of the Collateral, except that the Company may invest in those investments permitted under the Note Issuance Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Note Issuance Documents and permit the same to remain outstanding in accordance with such provisionsPerson; (5) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Note Issuance DocumentsLoan Agreement; or (6) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).