Common use of Separateness Clause in Contracts

Separateness. Since its date of formation, the Company (i) has not entered into any contract or agreement with any of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence, (iv) has maintained all of its books, records, financial statements and bank accounts separate from those of any other person or entity, (v) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Party), (viii) has corrected any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of its assets in its own name, (x) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xiv) has not held itself out as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 above.

Separateness. Since The Borrower shall at all times (a) maintain its date bank accounts, books and records separate from any other Person and otherwise ensure that the records and books of formation, the Company (i) has not entered into any contract or agreement with any Borrower reflect the separate existence of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms Borrower and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iiib) has done or caused to be done all things necessary to observe all organizational formalities applicable to it separately identify and to preserve segregate its existence, (iv) has maintained all of its books, records, financial statements funds and bank accounts separate assets from those of any other person Person and shall not commingle its funds or entity, (v) has not had its assets listed as assets on the financial statement with those of any other person Person (for the avoidance of doubt, the Borrower’s use of third party cash management systems or entity, (vi) has filed all tax returns required to be filed by lockbox arrangements shall not constitute commingling of the Company and is not part of a consolidated group for U.S. federal income tax purposes Borrower’s funds or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Partyassets), (viiic) has corrected any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of hold its assets in its own name, (xd) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained engage in transactions and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held conduct all of its assets business activities in its own namename and present itself to the public as a company separate from its Member, Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), (xiiie) maintain its financial statements, accounting records, and other entity documents separate from any other Person and shall issue and approve its own separate financial statements annually and shall ensure that the Borrower’s books and records reflect the Borrower’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements of its Affiliates, provided that such consolidated financial statements contain a footnote indicating that the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations and liabilities out of its funds and assets and shall not guaranteed permit other Persons (other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreement) to pay the Borrower’s liabilities or obligations, (g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (h) except as provided in the Servicing Agreement, maintain an arm’s-length relationship with and not be or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated for the debts of any other Person, (xiv) has Person and not held itself hold out its credit as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets available to secure satisfy the obligations of any other person Person, (j) not acquire the debt or securities of the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, (k) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationery, invoices and checks, (l) except as otherwise expressly permitted by this Agreement, not pledge its assets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (n) not make loans to any Person (except for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Member or any Affiliate of the Borrower except in the ordinary course of its business and on terms that are fair and no such pledge remains outstanding except less favorable to the Borrower than those terms that would be obtained in connection a comparable arm’s-length transaction with the Loanan unrelated third party, (xviip) has maintained promptly correct any known misunderstanding regarding the separate existence and identity of the Borrower, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capital capitalization in light of its contemplated business and operations, (xviiis) has not owned any subsidiary or any equity interest take all appropriate action necessary to maintain its existence as a limited liability company in good standing under the laws of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any other entityfinancial transaction, (xixv) has not incurred ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any indebtedness meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that is still outstanding the Borrower’s officers and Managers do not, in such capacities, act on behalf of other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, Persons and (xxy) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Partyobserve, except for guarantees that have been either released or discharged (or that will be discharged as a result follow and ensure the accuracy of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property factual assumptions set forth in the non-consolidation opinion of Hxxxxx & Bxxxx, LLP dated on or about the Funding Date and referred to in Section 3.1 above3.2(h). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatment.

Separateness. Since its As of the date of formationhereof, the Company Seller (i) has owns no assets, and does not entered into engage in any contract business, other than the assets and transactions intended to be transferred to the Purchaser or agreement with any of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, designee under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, this Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) with respect to Retained Interests, (B) commitments to make loans which may become Eligible Assets, and (C) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved in writing by the Deal Agent, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Authority Documents other than as the same have been heretofore amended, or suffered same to be amended, modified or otherwise changed other than as the same have been heretofore amended; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has and does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any direct change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller’s creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Deal Agent or any Rating Agency; (xvi) maintains an arm’s length relationship with its Affiliates; (xvii) uses separate stationary, invoices and checks; and (xviii) allocates fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its date Each of formationSeller Parties acknowledges that the Administrative Agent and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator and their respective other Affiliates (each, the Company a “Related Entity”). In furtherance thereof, Seller hereby agrees to: (i) has not entered into any contract or agreement with any of maintain its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms books and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence, (iv) has maintained all of its books, records, financial statements records and bank accounts separate from those of any other person or entityRelated Entity; provided, however, that the Originator may maintain its Collection Accounts and Lock-Boxes for the benefit of Seller; (vii) has not had at all times hold itself out to the public and all other Persons as a legal entity separate from its assets listed as assets on the financial statement of member and any other person or entityPerson; (iii) have a board of directors separate from that of its member and any other Person; (iv) file its own tax returns, if any, as may be required under applicable Law, to the extent (viA) has filed all tax returns required to be filed by the Company and is not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for U.S. federal income tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable Law; (v) except as contemplated herein or been included in a consolidated U.S. federal income tax return with any other person or entityTransaction Document, not commingle its assets with assets of any other Person; (vi) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (vii) has been, and at all times has held itself out to the public as, a legal entity maintain separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Party), financial statements; (viii) has corrected pay its own liabilities only out of its own funds; (ix) maintain an arm’s length relationship with each other Related Entity; (x) pay the salaries of its own employees, if any; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably with other Persons any overhead for shared office space; (xiii) except as contemplated herein or in any other Transaction Document, use separate stationery, invoices and checks; (xiv) except as contemplated herein or in any other Transaction Document, not pledge its assets for the benefit of any other Person; (xv) correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of its assets in its own name, (x) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xiv) has not held itself out as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, identity; (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained maintain adequate capital in light of its contemplated business operationspurpose, transactions and liabilities; (xvii) cause its board of directors to keep minutes of any meetings (if applicable) and actions and observe all other Delaware limited liability company formalities; (xviii) has not owned acquire any subsidiary or any equity interest in any other entity, securities of its member; (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing act solely in its own name and trade payables in through its own authorized managers, directors, members, officers and agents, except as expressly permitted under the ordinary course, Transaction Documents; and (xx) has not had any of cause its obligations guaranteed by an Affiliate or directors, officers, agents and other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result representatives to act at all times with respect to Seller consistently and in furtherance of the closing of foregoing and in the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate best interests of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 above.

Separateness. Since the formation of Purchaser (a) Purchaser ------------ has incurred no debt other than trade payables and expense accruals in connection with its date operations in the normal course of formation, business; (b) Purchaser has maintained its books and records separate from the Company (i) has not entered into any contract or agreement with any of its affiliates, constituents, or owners, or any guarantors books and records of any other entity, has maintained separate bank accounts and no funds of its obligations (each an “Affiliate”) or any person or entity in control Purchaser have been commingled with funds of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate other entity; (each a “Related Affiliate Party”c) except upon terms and conditions that are commercially reasonable and substantially similar to those available Purchaser has kept in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware, and has obtained and preserved its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Receivables; (ivd) Purchaser does not own any subsidiary and has maintained all not loaned or advanced any moneys to, or made an investment in, any Person; (e) Purchaser has not made any capital expenditures; (f) Purchaser has not guaranteed (directly or indirectly), except with respect to its obligation to repurchase Receivables pursuant to the terms of its booksthe Sale and Servicing Agreement, recordsendorsed or otherwise become contingently liable (directly or indirectly) for the obligations of, financial statements and bank accounts separate from those or owned or purchased any stock, obligations or securities of or any other person interest in, or entitymade any capital contribution to, any Person; and (vg) Purchaser has not had its assets listed as assets on the financial statement of engaged in any other person or entityaction that bears on whether the separate legal identity of Purchaser will be respected and, without limitation of the foregoing, Purchaser has not (vi1) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Party), (viii) has corrected any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of its assets in its own name, (x) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated being liable for the debts of any other Personparty, (xiv2) has not held itself out as being responsible for the debts acted other than in its corporate name and through its duly authorized officers or obligations agents, and (3) created, incurred, assumed, or in any manner become liable in respect of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding indebtedness except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables and expense accruals incurred in the ordinary coursecourse of business and which are incidental to its business purpose. In the event of any breach of a representation and warranty made by Purchaser hereunder, Originator covenants and (xx) has agrees that it will not had take any of its obligations guaranteed by an Affiliate or other Related Affiliate Partyaction to pursue any remedy that it may have hereunder, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construedin law, by imputation in equity or otherwise, to refer to until a year and a day have passed since the knowledge of Seller date on which all Notes, Certificates, pass-through certificates or any affiliate of Sellerother similar securities issued by Purchaser, to any property manager or to any other officera trust or similar vehicle formed by Purchaser, agenthave been paid in full. Originator and Purchaser agree that damages will not be an adequate remedy for such breach and that this covenant may be specifically enforced by Purchaser, manager, representative Issuer or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are by the representatives of Seller that have primary responsibility to oversee the Company’s management Indenture Trustee on behalf of the Property Noteholders and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter Owner Trustee on behalf of the representations and warranties regarding the Property set forth in Section 3.1 aboveCertificateholders.

Separateness. Since its As of the date of formationhereof, the Company Seller (i) has owns no assets, and does not entered into engage in any contract or agreement with any of its affiliatesbusiness, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, other than the assets and transactions intended to be transferred to the Buyer under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, this Repurchase Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) with respect to Retained Interests, (B) commitments to make loans which may become Eligible Assets, and (C) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved in writing by the Buyer, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Governing Documents other than as the same have been heretofore amended, or suffered same to be amended, modified or otherwise changed other than as the same have been heretofore amended; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has and does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any direct change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller's creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Buyer or any Rating Agency; (xvi) maintains an arm's length relationship with its Affiliates; (xvii) uses separate stationary, invoices and checks; and (xviii) allocates fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its As of the date of formationhereof, the Company Seller (other than Arbor Realty) (i) has owns no assets, and does not entered into engage in any contract or agreement with any of its affiliatesbusiness, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under other than the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms assets and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, transactions specifically contemplated by this Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (W) with respect to Retained Interests, (X) commitments to make loans which may become Eligible Assets, and (Y) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved in writing by the Deal Agent, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Authority Documents, or suffered same to be amended, modified or otherwise changed; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under the GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller’s creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Deal Agent or any Rating Agency; (xvi) shall maintain an arm’s length relationship with its Affiliates; (xvii) maintain a sufficient number of employees in light of contemplated business operations; (xviii) use separate stationary, invoices and checks; and (xvix) allocate fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its As of the date of formationhereof, the Company Seller (i) has owns no assets, and does not entered into engage in any contract or agreement with any of its affiliatesbusiness, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under other than the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms assets and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, transactions specifically contemplated by this Repurchase Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (W) with respect to Retained Interests, (X) commitments to make loans which may become Eligible Assets, and (Y) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved by the Purchaser, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead Loan Purchase and Repurchase Agreement (Wachovia and Arbor) expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Governing Documents, or suffered same to be amended, modified or otherwise changed; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under the GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller's creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Purchaser or any Rating Agency; (xvi) shall maintain an arm's length relationship with its Affiliates; (xvii) maintain a sufficient number of employees in light of contemplated business operations; (xviii) use separate stationary, invoices and checks; and (xvix) allocate fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its As of the date of formationhereof, the Company Seller (i) has owns no assets, and does not entered into engage in any contract or agreement with any of its affiliatesbusiness, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under other than the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms assets and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, transactions specifically contemplated by this Repurchase Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (W) with respect to Retained Interests, (X) commitments to make loans which may become Eligible Assets, and (Y) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved in writing by the Purchaser, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Governing Documents, or suffered same to be amended, modified or otherwise changed; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under the GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller's creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Purchaser or any Rating Agency; (xvi) shall maintain an arm's length relationship with its Affiliates; (xvii) maintain a sufficient number of employees in light of contemplated business operations; (xviii) use separate stationary, invoices and checks; and (xvix) allocate fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its date of formationEach Seller Party acknowledges that the Administrative Agent and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the applicable Originator and their respective other Affiliates (each, the Company a “Related Entity”). In furtherance thereof, Seller hereby agrees to: (i) has not entered into any contract or agreement with any of maintain its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms books and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence, (iv) has maintained all of its books, records, financial statements records and bank accounts separate from those of any other person Related Entity; provided, however, that Hawker, the applicable Originator or entityENS, as applicable, may maintain its Collection Accounts and Lock-Boxes for the benefit of Seller; (vii) has not had at all times hold itself out to the public and all other Persons as a legal entity separate from its assets listed as assets on the financial statement of member and any other person or entityPerson; (iii) have a board of directors separate from that of its member and any other Person; (iv) file its own tax returns, if any, as may be required under Applicable Law, to the extent (viA) has filed all tax returns required to be filed by the Company and is not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for U.S. federal income tax purposes of another taxpayer, and pay any taxes so required to be paid under Applicable Law; (v) except as contemplated herein or been included in a consolidated U.S. federal income tax return with any other person or entityTransaction Document, not commingle its assets with assets of any other Person; (vi) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (vii) has been, and at all times has held itself out to the public as, a legal entity maintain separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Party), financial statements; (viii) has corrected pay its own liabilities only out of its own funds; (ix) maintain an arm’s length relationship with each other Related Entity; (x) pay the salaries of its own employees, if any; (xi) not hold out its credit or assets as being available to satisfy the obligations of others; (xii) allocate fairly and reasonably with other Persons any overhead for shared office space; (xiii) except as contemplated herein or in any other Transaction Document, use separate stationery, invoices and checks; (xiv) except as contemplated herein or in any other Transaction Document, not pledge its assets for the benefit of any other Person; (xv) correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of its assets in its own name, (x) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xiv) has not held itself out as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, identity; (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained maintain adequate capital in light of its contemplated business operationspurpose, transactions and liabilities; (xvii) cause its board of directors to keep minutes of any meetings (if applicable) and actions and observe all other Delaware limited liability company formalities; (xviii) has not owned acquire any subsidiary or any equity interest in any other entity, securities of its member; (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing act solely in its own name and trade payables in through its own authorized managers, directors, members, officers and agents, except as expressly permitted under the ordinary course, Transaction Documents; and (xx) has not had any of cause its obligations guaranteed by an Affiliate or directors, officers, agents and other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result representatives to act at all times with respect to Seller consistently and in furtherance of the closing of foregoing and in the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate best interests of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 above.

Separateness. Since its date of formationEach Seller shall (a) not own any assets, or engage in any business, other than the Company assets and business specifically contemplated by this Repurchase Agreement; (ib) has not entered into incur any contract Indebtedness or agreement with obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant to the Repurchase Documents; (c) not make any loans or advances to any third party, and shall not acquire obligations or securities of its affiliates, constituents, or owners, or any guarantors of any of its obligations Affiliates; (each an “Affiliate”d) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiie) has done or caused to be done comply with the provisions of its organizational documents (including articles of formation and by-laws); (f) do all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and shall not amend, modify or otherwise change its organizational documents (ivincluding articles of formation and by-laws), or suffer same to be amended, modified or otherwise changed, without the prior written consent of Buyer; (g) has maintained maintain all of its books, records, financial statements and bank accounts separate from those of any other person or entity, its Affiliates; (vh) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenbe, and at all times has held will hold itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conduct business and held all of its assets in its own name, (x) has not identified identify itself or any of its Affiliates as a division or part of the other, (xi) has maintained other and utilized shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing checks; (i) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its own namesize and character and in light of its contemplated business operations; (j) not engage in or suffer any Change of Control, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xiik) has not commingled commingle its funds or other assets with those of any Affiliate or any other person or entity and has held all of Person; (l) maintain its assets in such a manner that it will not be difficult to segregate, ascertain or identify its own name, (xiii) has not guaranteed individual assets from those of any Affiliate or become obligated for the debts of any other Person, ; (xivm) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (n) cause each of its direct and indirect owners to agree (and Newco hereby agrees) to (i) not file or entityconsent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to Sellers; not institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to Sellers, (xvii) has allocated fairly not seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Sellers or a substantial portion of its properties; or (iii) not make any assignment for the benefit of either Seller's creditors; and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space (o) agree (and services performed by any employee of an Affiliate each Seller hereby agrees) to (i) not file or Related Affiliate Party, (xvi) has not pledged its assets consent to secure the obligations filing of any other person bankruptcy, insolvency or entity and no such pledge remains outstanding except in connection reorganization case or proceeding with respect to either REIT Subsidiary; not institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the Loanrelief from debts or the protection of debtors generally with respect to either REIT Subsidiary; (ii) not seek or consent to the appointment of a receiver, (xvii) has maintained adequate capital in light liquidator, assignee, trustee, sequestrator, custodian or any similar official for either REIT Subsidiary or a substantial portion of its contemplated business operations, properties; or (xviiiiii) has not owned make any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in assignment for the ordinary course, and (xx) has not had any benefit of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 aboveREIT Subsidiary's creditors.

Separateness. Since its date of formation, the Company Each Borrower will (i) has own no assets, and not entered into engage in any contract business, other than the assets and transactions specifically contemplated or agreement with any of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under permitted by the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated partyLoan Documents, (ii) has paid all not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent, other than as contemplated or permitted hereby, (iii) not make any loans or advances to any third party, and shall not acquire obligations or securities of any Affiliate in each case except as permitted by the Loan Documents, (iv) pay its debts and liabilities (including, as applicable shared personnel and overhead expenses) only from its own assets, (iiiv) has done or caused to be done do all things necessary under applicable law and its Constituent Documents to observe all organizational formalities applicable to it and to preserve its existence, and will not amend, modify or otherwise change its Constituent Document, or suffer the same to be amended, modified or otherwise changed in each case, in a manner that would be materially adverse to the Administrative Agent and the Lenders in the reasonable discretion of the Administrative Agent, without the prior written consent of the Administrative Agent, (ivvi) has maintained maintain all of its books, records, financial statements (other than as required by GAAP) and bank accounts separate from those of any other person or entity, (v) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entityAffiliate, (vii) has beenbe, and at all times has held will hold itself out to the public and to its Host Customers as, a legal entity separate and distinct from any other person or entity (entity, including any Affiliate or other Related Affiliate Party)its members, (viii) has corrected correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conduct business and held all of its assets in its own name, (x) has not identified identify itself or any of its Affiliates as a division or part of the otherits members and maintain and utilize separate invoices and checks, (xiviii) has maintained maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and utilized separate stationery, invoices character and checks bearing in light of its own namecontemplated business operations, (xiiix) has not commingled engage in or suffer any dissolution, winding-up, liquidation, consolidation or merger in whole or in part except as permitted by the Loan Documents, (x) not commingle its funds or other assets with those of any other person Affiliate or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xivxi) has maintain its assets in such a manner that it will not held be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person, (xii) not and will not hold itself out as being to be responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary coursePerson, and (xxxiii) has be formed and organized solely for the purpose of holding, directly or indirectly, the Collateral and not had hold or own any assets other than the Collateral and assets related thereto; provided, however, that notwithstanding the foregoing, the property of its obligations guaranteed the Borrowers may be covered by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged the insurance policies of Borrower Representative (or that will be discharged an Affiliate), so long as a result of loss payable endorsements benefitting the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx applicable Borrowers are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 aboveprovided.

Separateness. Since its As of the date of formationhereof, the Company Seller (ia) owns no assets, and does not engage in any business, other than the assets and transactions specifically contemplated by this Repurchase Agreement; (b) has not entered into incurred any contract indebtedness or agreement with obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant hereto; (c) has not made any loans or advances to any third party other than loans to Guarantor, and has not acquired obligations or securities of its affiliates, constituents, or owners, or any guarantors of any of its obligations Affiliates; (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (iid) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiie) has done or caused to be done complies with the provisions of its organizational documents; (f) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its organizational documents, or suffered same to be amended, modified or otherwise changed; (ivg) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person or entity, its Affiliates; (vh) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other; (i) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (j) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xik) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person or entity and has held all of Person; (1) maintains its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its own name, (xiii) has not guaranteed or become obligated for the debts individual assets from those of any Affiliate or any other Person, person; (xivm) has does not held hold itself out as being to be responsible for the debts or obligations of any other person or entity, Person; (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvin) has not pledged its assets (i) filed or consented to secure the obligations filing of any other person bankruptcy, insolvency or entity reorganization case or proceeding with respect to the Seller; instituted any proceedings under any applicable insolvency law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller; (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties; or (iii) made any assignment for the benefit of the Seller’s creditors; and no such pledge remains outstanding except in connection with the Loan, (xviio) has maintained adequate capital in light at least one (1) Independent Director for purposes of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in voting on the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth matters described in Section 3.1 above13.9(n) only.

Separateness. Since its As of the date of formationhereof, the Company Seller (ia) owns no assets, and does not engage in any business, other than the assets and transactions specifically contemplated by this Repurchase Agreement; (b) has not entered into incurred any contract indebtedness or agreement with obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant hereto; (c) has not made any loans or advances to any third party other than loans to Guarantor, and has not acquired obligations or securities of its affiliates, constituents, or owners, or any guarantors of any of its obligations Affiliates; (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (iid) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiie) has done or caused to be done complies with the provisions of its organizational documents; (f) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its organizational documents, or suffered same to be amended, modified or otherwise changed; (ivg) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person or entity, its Affiliates; (vh) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other; (i) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (j) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xik) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person or entity and has held all of Person; (l) maintains its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its own name, (xiii) has not guaranteed or become obligated for the debts individual assets from those of any Affiliate or any other Person, person; (xivm) has does not held hold itself out as being to be responsible for the debts or obligations of any other person or entity, Person; (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvin) has not pledged its assets (i) filed or consented to secure the obligations filing of any other person bankruptcy, insolvency or entity reorganization case or proceeding with respect to the Seller; instituted any proceedings under any applicable insolvency law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller; (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties; or (iii) made any assignment for the benefit of the Seller's creditors; and no such pledge remains outstanding except in connection with the Loan, (xviio) has maintained adequate capital in light of its contemplated business operations, at least one (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition1). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 above.

Separateness. Since The Borrower shall at all times (a) maintain its date bank accounts, books and records separate from any other Person and otherwise ensure that the records and books of formation, the Company (i) has not entered into any contract or agreement with any Borrower reflect the separate existence of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms Borrower and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iiib) has done or caused to be done all things necessary to observe all organizational formalities applicable to it separately identify and to preserve segregate its existence, (iv) has maintained all of its books, records, financial statements funds and bank accounts separate assets from those of any other person Person and shall not commingle its funds or entity, (v) has not had its assets listed as assets on the financial statement with those of any other person Person (for the avoidance of doubt, the Borrower’s use of third party cash management systems or entity, (vi) has filed all tax returns required to be filed by lockbox arrangements shall not constitute commingling of the Company and is not part of a consolidated group for U.S. federal income tax purposes Borrower’s funds or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Partyassets), (viiic) has corrected any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of hold its assets in its own name, (xd) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained engage in transactions and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held conduct all of its assets business activities in its own namename and present itself to the public as a company separate from its Member, Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), (xiiie) maintain its financial statements, accounting records, and other entity documents separate from any other Person and shall issue and approve its own separate financial statements annually and shall ensure that the Borrower’s books and records reflect the Borrower’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements of its Affiliates, provided that such consolidated financial statements contain a footnote indicating that the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations and liabilities out of its funds and assets and shall not guaranteed permit other Persons (other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreement) to pay the Borrower’s liabilities or obligations, (g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (h) except as provided in the Servicing Agreement, maintain an arm’s-length relationship with and not be or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated for the debts of any other Person, (xiv) has Person and not held itself hold out its credit as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets available to secure satisfy the obligations of any other person Person, (j) not acquire the debt or securities of the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, (k) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationery, invoices and checks, (l) except as otherwise expressly permitted by this Agreement, not pledge its assets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (n) not make loans to any Person (except for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Member or any Affiliate of the Borrower except in the ordinary course of its business and on terms that are fair and no such pledge remains outstanding except less favorable to the Borrower than those terms that would be obtained in connection a comparable arm’s-length transaction with the Loanan unrelated third party, (xviip) has maintained promptly correct any known misunderstanding regarding the separate existence and identity of the Borrower, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capital capitalization in light of its contemplated business and operations, (xviiis) take all appropriate action necessary to maintain its existence as a limited liability company in good standing under the laws of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware *Information marked with an asterisk herein has not owned any subsidiary or any equity interest been omitted and filed separately with the Commission pursuant to a request for confidential treatment. Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any other entityfinancial transaction, (xixv) has not incurred ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any indebtedness meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that is still outstanding the Borrower’s officers and Managers do not, in such capacities, act on behalf of other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, Persons and (xxy) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Partyobserve, except for guarantees that have been either released or discharged (or that will be discharged as a result follow and ensure the accuracy of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property factual assumptions set forth in the non-consolidation opinion of Xxxxxx & Xxxxx, LLP dated on or about the Funding Date and referred to in Section 3.1 above3.2(h).

Separateness. Since The guarantor shall at all times (a) maintain its date bank accounts, books and records separate from any other Person and otherwise ensure that the records and books of formation, the Company (i) has not entered into any contract or agreement with any Guarantor reflect the separate existence of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms Guarantor and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iiib) has done or caused to be done all things necessary to observe all organizational formalities applicable to it separately identify and to preserve segregate its existence, (iv) has maintained all of its books, records, financial statements funds and bank accounts separate assets from those of any other person Person and shall not commingle its funds or entity, (v) has not had its assets listed as assets on the financial statement with those of any other person or entityPerson, (vic) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate Party), (viii) has corrected any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its business and held all of hold its assets in its own name, (xd) has not identified itself or any of its Affiliates as a division or part of the other, (xi) has maintained engage in transactions and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held conduct all of its assets business activities in its own namename and present itself to the public as a company separate from its member(s), Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), (xiiie) maintain its financial statements, accounting records, and other entity documents separate from any other Person and shall issue and approve its own separate financial statements annually and shall ensure that the Guarantor’s books and records reflect the Guarantor’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results of the Guarantor may be included in the consolidated financial statements of its Affiliates, provided that such consolidated financial statements contain a footnote indicating that the Guarantor is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations and liabilities out of its funds and assets and shall not guaranteed permit other Persons to pay the Guarantor’s liabilities or obligations, (g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (h) maintain an arm’s-length relationship with and not be or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated for the debts of any other Person, (xiv) has Person and not held itself hold out its credit as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets available to secure satisfy the obligations of any other person Person, in each case other than pursuant to this Guaranty and the other Loan Documents, (j) not acquire the debt or securities of its member(s) or any of the direct or indirect owners of the Guarantor or the Guarantor’s Affiliates, (k) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationery, invoices and checks, (l) except for the Liens granted pursuant to the Security Documents to which it is a party, not pledge its assets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (n) not make loans to any Person, (o) not enter into or be a party to, any transaction with its member(s) or any Affiliate of the Guarantor except in the ordinary course of its business and on terms that are fair and no such pledge remains outstanding except less favorable to the Guarantor than those terms that would be obtained in connection a comparable arm’s-length transaction with the Loanan unrelated third party, (xviip) has maintained promptly correct any known misunderstanding regarding the separate existence and identity of the Guarantor, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capital capitalization in light of its contemplated business and operations, (xviiis) has not owned any subsidiary or any equity interest take all appropriate action necessary to maintain its existence as a limited liability company in good standing under the laws of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Guaranty and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any other entityfinancial transaction, (xixv) has not incurred ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with its Organizational Documents, (w) hold any indebtedness meetings of its managers and/or its member(s) separately from those of any other Person, (x) ensure that is still outstanding the Guarantor’s officers and managers do not, in such capacities, act on behalf of other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, Persons and (xxy) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Partyobserve, except for guarantees that have been either released or discharged (or that will be discharged as a result follow and ensure the accuracy of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property factual assumptions set forth in the non-consolidation opinion of Hxxxxx & Bxxxx, LLP dated on or about the Funding Date and referred to in Section 3.1 above3.2(h) of the Credit Agreement.

Separateness. Since its As of the date of formationhereof, the Company Seller (i) has owns no assets, and does not entered into engage in any contract or agreement with any of its affiliatesbusiness, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, other than the assets and transactions intended to be transferred to the Purchaser under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, this Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) with respect to Retained Interests, (B) commitments to make loans which may become Eligible Assets, and (C) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved in writing by the Purchaser, and has not acquired obligations or securities of its Affiliates; (iv) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiiv) has done or caused to be done complies with the provisions of its organizational documents; (vi) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and has not amended, modified or otherwise changed its Authority Documents other than as the same have been heretofore amended, or suffered same to be amended, modified or otherwise changed other than as the same have been heretofore amended; (ivvii) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP consistently applied or entity, as a matter of Applicable Law); (vviii) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenis, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has and does not identified identify itself or any of its Affiliates as a division or part of the other; (ix) maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (x) does not engage in or suffer any direct change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) has maintained and utilized separate stationery, invoices and checks bearing does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person Person; (xii) maintains its accounts separately from those of any Affiliate or entity and has held all of its assets in its own name, any other Person; (xiii) has does not guaranteed or become obligated for the debts of any other Person, (xiv) has not held hold itself out as being to be responsible for the debts or obligations of any other person Person; (xiv) has not (A) filed or entityconsented to the filing of any Insolvency Proceeding with respect to the Seller, instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller, (B) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties or (C) made any assignment for the benefit of the Seller’s creditors; (xv) has allocated at least one (1) Independent Director or such greater number as required by the Purchaser or any Rating Agency; (xvi) maintains an arm’s length relationship with its Affiliates; (xvii) uses separate stationary, invoices and checks; and (xviii) allocates fairly and reasonably any overhead expenses that have been for shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 abovespace.

Separateness. Since its date Each Borrower shall (a) own no material assets, and engage in no business, other than the assets and transactions specifically contemplated by this Agreement; (b) not incur any Indebtedness other than as permitted pursuant to this Agreement; (c) not make any Investments other than the Eligible Assets and assets that may be acquired in any foreclosure on, or other realization of formationcollateral from, the Company (i) has not entered into any contract or agreement with any of its affiliates, constituents, or owners, or any guarantors of any of its obligations the Eligible Assets that is a mezzanine loan; (each an “Affiliate”d) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiie) has done or caused to be done comply with the provisions of its organizational documents; (f) do all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and shall not amend, modify or otherwise change its organizational documents, or suffer same to be amended, modified or otherwise changed, without the prior written consent of the Lender; (ivg) has maintained maintain all of its books, records, financial statements and bank accounts separate from those of any other person or entityits Affiliates (provided, (v) has not had that it may permit its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with financial statement of an Affiliate; provided, further, that in respect of such assets, (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of it from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other person or entity, Person and (viiii) has beensuch assets shall also be listed on its own separate balance sheet); (h) be, and at all times has held shall hold itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected shall correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its shall conduct business and held all of its assets in its own name, (x) has shall not identified identify itself or any of its Affiliates as a division or part of the other, (xi) has maintained other and utilized shall maintain and utilize a separate stationery, invoices and checks bearing checks; (i) not engage in or suffer any dissolution, winding up, liquidation, consolidation or merger in whole or in part; (j) not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person or entity and has held all of Person; (k) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its own name, (xiii) has not guaranteed individual assets from those of any affiliate or become obligated for the debts of any other Person, ; (xivl) has not held and will not hold itself out as being to be responsible for the debts or obligations of any other person Person; (m) not (i) file or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets consent to secure the obligations filing of any other person bankruptcy, insolvency or entity and no reorganization case or proceeding with respect to such pledge remains outstanding except in connection Borrower; institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to such Borrower; (ii) seek or consent to the Loanappointment of a receiver, (xvii) has maintained adequate capital in light liquidator, Examiner, assignee, trustee, sequestrator, custodian or any similar official for such Borrower or a substantial portion of its contemplated business operations, properties; or (xviiiiii) has not owned make any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in assignment for the ordinary course, benefit of such Borrower's creditors and (xxn) has not had have any employees or own, rent, lease or be in possession of its obligations guaranteed by an Affiliate any buildings or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 aboveequipment.

Separateness. Since its date of formationEach Borrower (a) does not own any assets, or engage in any business, other than the Company assets and transactions specifically contemplated by this Agreement; (ib) has not entered into incurred any contract Indebtedness other than as permitted under this Agreement; (c) has not made any Investments (other than the Eligible Assets and assets that may be acquired in any foreclosure on, or agreement with after realization of collateral from, any of its affiliates, constituents, or owners, or any guarantors of any of its obligations the Eligible Assets that is a mezzanine loan); (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (iid) has paid all of its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, ; (iiie) has done or caused to be done complies with the provisions of its organizational documents; (f) does all things necessary to observe all organizational formalities applicable to it and to preserve its existence, ; (ivg) has maintained maintains all of its books, records, financial statements and bank accounts separate from those of any other person or entityits Affiliates (provided, (v) has not had that it may permit its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with financial statement of an Affiliate; provided, further, that in respect of such assets, (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of it from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other person or entity, Person and (viiii) has beensuch assets shall also be listed on its own separate balance sheet); (h) is, and at all times has held holds itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected corrects any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conducts business and held all of its assets in its own name, (x) has does not identified identify itself or any of its Affiliates as a division or part of the other, (xi) has maintained other and utilized maintains and utilizes separate stationery, invoices and checks bearing checks; (i) does not engage in or suffer any dissolution, winding up, liquidation, consolidation or merger in whole or in part; (j) does not commingle its own name, (xii) has not commingled its funds or other assets with those of any Affiliate or any other person or entity and has held all of Person; (k) maintains its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its own name, (xiii) has not guaranteed individual assets from those of any Affiliate or become obligated for the debts of any other Person, ; (xivl) has does not held hold itself out as being to be responsible for the debts or obligations of any other person or entity, Person; (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvim) has not pledged its assets (i) filed or consented to secure the obligations filing of any other person bankruptcy, insolvency or entity and no reorganization case or proceeding with respect to such pledge remains outstanding except in connection Borrower; instituted any proceedings under any applicable insolvency law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to such Borrower; (ii) sought or consented to the Loanappointment of a receiver, (xvii) has maintained adequate capital in light liquidator, Examiner, assignee, trustee, sequestrator, custodian or any similar official for such Borrower or a substantial portion of its contemplated business operations, properties; or (xviiiiii) has not owned made any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in assignment for the ordinary course, benefit of such Borrower's creditors and (xxn) has does not had have any employees or own, rent, lease or be in possession of its obligations guaranteed by an Affiliate any buildings or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 aboveequipment.

Separateness. Since its date of formation(a) Each Credit Party shall, the Company (i) has not entered into any contract or agreement with any and shall cause each of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated partySubsidiaries to, (iia) has paid all of pay its debts and liabilities only from its own assets, (iiib) has done or caused to be done comply with the provisions of its Governing Documents, (c) do all things necessary to observe all organizational formalities applicable to it and to preserve its existence, and not amend, modify, waive provisions of or otherwise change its Governing Documents, (ivd) has maintained maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that the financial statements of such Affiliates may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Credit Parties and their Subsidiaries from such Affiliate and to indicate that each Credit Party’s and each Subsidiary’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other person Person and (ii) such assets shall also be listed on each Credit Party’s and each Subsidiary’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or entitypermitted under Requirements of Law), (ve) has not had its assets listed as assets on the financial statement of any other person or entity, (vi) has filed all tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any other person or entity, (vii) has beenbe, and at all times has held hold itself out to the public as, a legal entity separate and distinct from any other person or entity (including any Affiliate or other Related Affiliate PartyAffiliate), (viii) has corrected correct any known misunderstanding regarding its status as a separate entity, (ix) has conducted all of its conduct business and held all of its assets in its own name, (x) has and not identified identify itself or any of its Affiliates as a division or part of the other, (xif) has maintained maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and utilized character and in light of its contemplated business operations and shall remain Solvent, (g) not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others, (h) maintain its properties, assets and accounts separate stationeryfrom those of any Affiliate or any other Person, (i) not hold itself out to be responsible for the debts or obligations of any other Person, (j) maintain a sufficient number of employees, including management executives and officers, in light of contemplated business operations, (k) use separate stationary, invoices and checks bearing its own name, (xiil) has maintain separate customer and supplier relationships and separate invoice of such customers and suppliers, and (m) not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xiv) has not held itself out as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged pledge its assets to secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the LoanPerson, (xviiwhether corporate, partnership, limited liability company or other) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or own any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not be construed, by imputation or otherwise, to refer to the knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Property and are the representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the representations and warranties regarding the Property set forth in Section 3.1 above.