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Entity Status; Dissolution. shall maintain its valid legal existence and (if is not organized in the State in which the Land is located) its qualification to do business in such jurisdiction. Furthermore, without limiting the provisions of [Article V] of this Agreement, shall not # engage in any division, dissolution, liquidation or consolidation or merger with or into any other business entity, # engage in any business activity not related to the ownership and operation of the Property, # transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of the properties or assets of except to the extent permitted by the Loan Documents, # modify, amend, waive or terminate its organizational documents or its qualification and good standing in any jurisdiction or # cause or permit the SPE Party to # divide into two (2) or more separate entities, dissolve, wind up or liquidate or take any action, or omit to take an action, as a result of which the SPE Party would be divided, dissolved, wound up or liquidated in whole or in part, or # amend, modify, waive or terminate the certificate of incorporation or bylaws of the SPE Party, in each case, without obtaining the prior consent of .

No Credit Party is a Covered Entity.

No Loan Party has been known by any other corporate name in the past five years and no Loan Party sells Inventory under any other name except as set forth on [Schedule 5.21], nor has any Loan Party been the surviving company of a merger or consolidation or acquired all or substantially all of the assets of any Person during the preceding five (5) years.

Affiliated Entity. An entity which is affiliated by common ownership or control with the Company.

Covered Entity No Borrower is a Covered Entity

ARTICLE # AFFIRMATIVE COVENANTS

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Single-Purpose Entity. Each Mortgage Loan requires the Mortgagor to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding. Both the Loan Documents and the organizational documents of the Mortgagor with respect to each Mortgage Loan with a Cut-off Date Principal Balance in excess of provide that the Mortgagor is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Principal Balance of or more has a counsel’s opinion regarding non-consolidation of the Mortgagor. For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date Principal Balance equal to or less, its organizational documents or the related Loan Documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Properties, and whose organizational documents further provide, or which entity represented in the related Loan Documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Loan Documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Mortgagor for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

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Seller Entity Facilities. [Schedule 4.9] sets forth a true, correct and complete list of all Owned Facilities and all Leased Facilities, in each case, as of the Effective Date.

Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each # has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, # has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and # has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.

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Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act.

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Shell Status. The Company represents that it is not a “shell” issuer and has never been a “shell” issuer, or that if it previously has been a “shell” issuer that at least twelve (12) months have passed since the Company has reported Form 10 type information indicating that it is no longer a “shell” issuer. Further, the Company will instruct its counsel to either # write a 144-3(a)(9) opinion to allow for salability of the Conversion Shares or # accept such opinion from Holder’s counsel.

If the is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, it shall deliver to the , at the time or times reasonably requested by the , such properly completed and executed documentation reasonably requested by the as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, the , if reasonably requested by the shall deliver such other documentation prescribed by applicable law or reasonably requested by the as will enable the to determine whether or not the is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in [[Section 3.10(e)(ii)(1), (ii)(2) and (ii)(4)])])]])])] below) shall not be required if in the ’s reasonable judgment such completion, execution or submission would subject the to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of the .

Any that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any , if reasonably requested by the Borrowers or the Administrative Agent, shall deliver

Status of Parties. Nothing contained herein shall be deemed to create a partnership or agency relationship between # Seller and # and/or the . Seller (and any Third Party Service Providers) shall act as independent contractors in the performance of the Transition Services. and the shall not be considered an employer or joint employer of any of Seller’s or its Affiliates’ personnel performing any of the Transition Services, and neither Seller nor its service providers shall be considered an employer or joint employer of any of ’s or the ’s personnel performing or otherwise involved in the Transition Services. Each of # and the and # Seller (and their respective service providers) shall be solely responsible for and assume all liability for the safety and supervision of their respective employees, agents, representatives and subcontractors in connection with the provision of the Transition Services; provided, however, that and the shall be responsible for ensuring the that Facility is maintained in accordance in all material respects with all applicable safety Laws. Neither Party shall have the authority or power to bind the other or to contract in the name of, or create a liability against, the other Party in any way or for any purpose. Neither Party shall have any obligation to provide workers compensation insurance, unemployment insurance, or any employee benefits of any nature for the other Party or any of the other Party’s employees or contractors.

Status of Lenders. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in [[Section 2.19(g)(ii)(A), (ii)(B) and (ii)(D)])])]])])] below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

Status as Shareholder. Upon submission of a Notice of Conversion by a Holder, # the shares covered thereby (other than the shares, if any, which cannot be issued because their issuance would exceed such Holder’s allocated portion of the Reserved Amount or Maximum Share Amount) shall be deemed converted into shares of Common Stock and # the Holder’s rights as a Holder of such converted portion of this Note shall cease and terminate, excepting only the right to receive certificates for such shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Borrower to comply with the terms of this Note. Notwithstanding the foregoing, if a Holder has not received certificates for all shares of Common Stock prior to the tenth (10th) business day after the expiration of the Deadline with respect to a conversion of any portion of this Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Stock by so notifying the Borrower) the Holder shall regain the rights of a Holder of this Note with respect to such unconverted portions of this Note and the Borrower shall, as soon as practicable, return such unconverted Note to the Holder or, if the Note has not been surrendered, adjust its records to reflect that such portion of this Note has not been converted. In all cases, the Holder shall retain all of its rights and remedies (including, without limitation, # the right to receive Conversion Default Payments pursuant to [Section 1.3] to the extent required thereby for such Conversion Default and any subsequent Conversion Default and # the right to have the Conversion Price with respect to subsequent conversions determined in accordance with [Section 1.3]) for the Borrower’s failure to convert this Note.

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Status of Liens. The fact that any collateral, security, security interest or Lien contemplated or intended to be given, created or granted as security for the repayment of the Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other security interest or Lien, it being recognized and agreed by each Guarantor that no Guarantor is entering into this [Article VIII] in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Obligations;

Independent Contractor Status. You agree that during the Consulting Period, # you will be an independent contractor to the Company and not an employee of the Company, and # the Company will not make payments for state or federal income tax, FICA (social security and Medicare), make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on your behalf.

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