Past Activities. Borrower hereby represents and warrants to Lender that from the date of its formation to the Effective Date, Borrower: (a) is and always has been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business, except where the failure to do so has not had a material adverse effect on Borrower and has been cured; (b) has no tax judgments or tax liens of any nature against it that have not been paid except for tax liens not yet due; (c) other than in connection with a tax appeal in connection with which all taxes have already been paid, is not currently involved in any dispute with any taxing authority except as disclosed to Lender in writing prior to the Effective Date; (d) has paid all income and other material taxes which it owes, except such taxes Borrower is contesting in accordance with this Agreement; (e) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than or in connection with the ownership and operation of the Property; (f) except as set forth on Schedule 7.3 hereof, is not now party to any lawsuit, arbitration, summons, or legal proceeding that is still pending as of the Effective Date, which is reasonably likely to have a material adverse effect on Borrower and not covered by insurance, or that resulted in a judgment against it that has not been paid in full; (g) has not entered into any contract or agreement with any of its Affiliates, except upon terms and conditions that are no less favorable to it than those available in an arm’s-length transaction with an unrelated party; (h) has paid all of its debts and liabilities that are due from its assets (including, without limitation, the Property) or from capital contributions from its equity owners; (i) has done or caused to be done all material things necessary to observe all organizational formalities applicable to it and to preserve its existence; (j) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person; provided, however, that the Borrower’s assets may have been included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation was made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (B) such assets shall be listed on Borrower’s Affiliate’s own separate balance sheet; (k) intentionally omitted; (l) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law); (m) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate); (n) has corrected any known misunderstanding regarding its status as a separate entity; (o) has conducted all of its business; (p) has not identified itself or any of its Affiliates as a division or part of the other; (q) has maintained and utilized separate stationery, invoices and checks bearing its own name (if such items are used); (r) has not maintained its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person; (s) has not commingled its assets with those of any other Person; (t) has not guaranteed or become obligated for the debts of any other Person other than in connection with any tenant improvement allowance under an Approved Lease; (u) has not held itself out as being responsible for the debts or obligations of any other Person other than in connection with any tenant improvement allowance under an Approved Lease; (v) except in connection will indebtedness discharged on or prior to the Effective Date, has not pledged its assets to secure the obligations of any other Person and no such pledge remains outstanding except in connection with the Loan; (w) has intended to maintain adequate capital in light of its contemplated business operations; (x) has maintained a sufficient number of employees (if any) in light of its contemplated business operations (taking into account then applicable circumstances) and has paid the salaries of its own employees (if any) from its own funds, in each case to the extent sufficient cash flow from the Property was available to the Borrower; provided that the foregoing did not require the member or any other direct or indirect member of the Borrower to make any additional capital contributions to the Borrower; (y) has not owned any subsidiary or any equity interest in any other entity; (z) has not acquired obligations or securities of its managers, members or Affiliates, as applicable; and (aa) has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan).
Appears in 1 contract
Sources: Loan Agreement (Stewards, Inc.)
Past Activities. Borrower hereby represents and warrants to Lender that that, from the date of its formation to the Effective Datedate of this Agreement, Borrower:
(a) is and always has been duly formed, validly existing, and in good standing in the state of its formation incorporation and in all other jurisdictions where it is qualified to do business, except where the failure to do so has not had a material adverse effect on Borrower and has been cured;
(b) has no tax judgments or tax liens of any nature against it that have not been paid except for tax liens not yet due;
(c) other than is in connection compliance with a tax appeal in connection with which all taxes have already been paidlaws, regulations, and orders applicable to it and has received all permits necessary for it to operate;
(d) is not currently involved in any dispute with any taxing authority except as disclosed to Lender in writing prior to the Effective Dateauthority;
(de) has paid all income and other material taxes which Taxes that it owes, except such taxes Borrower is contesting in accordance with this Agreement;
(ef) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than or in connection with the ownership and operation of the Property;
(fg) except as set forth on Schedule 7.3 hereof, is not now now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending as of the Effective Date, which is reasonably likely to have a material adverse effect on Borrower and not covered by insurance, or that resulted in a judgment against it that has not been paid in full;
(gh) has provided Lender with complete financial statements that reflect a fair and accurate view of the entity's financial condition;
(i) has passed a Phase I environmental audit for the Property;
(j) has no material contingent or actual obligations not related to the Property;
(k) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (each, a "Related Party"), except upon terms and conditions that are no less favorable commercially reasonable and substantially similar to it than those available in an arm’sarm's-length transaction with an unrelated party;
(h1) has paid all of its debts and liabilities that are due from its assets (including, without limitation, the Property) or from capital contributions from its equity ownersassets;
(i) has done or caused to be done all material things necessary to observe all organizational formalities applicable to it and to preserve its existence;
(j) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person; provided, however, that the Borrower’s assets may have been included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation was made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (B) such assets shall be listed on Borrower’s Affiliate’s own separate balance sheet;
(k) intentionally omitted;
(l) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law);
(m) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate);
(n) has corrected any known misunderstanding regarding its status as a separate entity;
(o) has conducted all of its business;
(p) has not identified itself or any of its Affiliates as a division or part of the other;
(q) has maintained and utilized separate stationery, invoices and checks bearing its own name (if such items are used);
(r) has not maintained its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(s) has not commingled its assets with those of any other Person;
(t) has not guaranteed or become obligated for the debts of any other Person other than in connection with any tenant improvement allowance under an Approved Lease;
(u) has not held itself out as being responsible for the debts or obligations of any other Person other than in connection with any tenant improvement allowance under an Approved Lease;
(v) except in connection will indebtedness discharged on or prior to the Effective Date, has not pledged its assets to secure the obligations of any other Person and no such pledge remains outstanding except in connection with the Loan;
(w) has intended to maintain adequate capital in light of its contemplated business operations;
(x) has maintained a sufficient number of employees (if any) in light of its contemplated business operations (taking into account then applicable circumstances) and has paid the salaries of its own employees (if any) from its own funds, in each case to the extent sufficient cash flow from the Property was available to the Borrower; provided that the foregoing did not require the member or any other direct or indirect member of the Borrower to make any additional capital contributions to the Borrower;
(y) has not owned any subsidiary or any equity interest in any other entity;
(z) has not acquired obligations or securities of its managers, members or Affiliates, as applicable; and
(aa) has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan).
Appears in 1 contract
Past Activities. Borrower hereby represents and warrants to Lender that that, from the date of its formation to the Effective Datedate of this Agreement, Borrower:
(a) is and always has been duly formed, validly existing, and in good standing in the state of its formation incorporation and in all other jurisdictions where it is qualified to do business, except where the failure to do so has not had a material adverse effect on Borrower and has been cured;
(b) yet due; has no tax judgments or tax liens of any nature against it that have not been paid except for tax liens not yet due;not
(c) other than is in connection compliance with a tax appeal in connection with which all taxes have already been paidlaws, regulations, and orders applicable to it and has received all permits necessary for it to operate;
(d) is not currently involved in any dispute with any taxing authority except as disclosed to Lender in writing prior to the Effective Dateauthority;
(de) has paid all income and other material taxes which Taxes that it owes, except such taxes Borrower is contesting in accordance with this Agreement;
(ef) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than or in connection with the ownership and operation of the Property;
(fg) except as set forth on Schedule 7.3 hereof, is not now now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending as of the Effective Date, which is reasonably likely to have a material adverse effect on Borrower and not covered by insurance, or that resulted in a judgment against it that has not been paid in full;
(gh) has provided Lender with complete financial statements that reflect a fair and accurate view of the entity's financial condition;
(i) has passed a Phase I environmental audit for the Property;
(j) has no material contingent or actual obligations not related to the Property;
(k) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (each, a "Related Party"), except upon terms and conditions that are no less favorable commercially reasonable and substantially similar to it than those available in an arm’sarm's-length transaction with an unrelated party;
(h1) has paid all of its debts and liabilities that are due from its assets (including, without limitation, the Property) or from capital contributions from its equity ownersassets;
(i) has done or caused to be done all material things necessary to observe all organizational formalities applicable to it and to preserve its existence;
(j) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person; provided, however, that the Borrower’s assets may have been included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation was made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (B) such assets shall be listed on Borrower’s Affiliate’s own separate balance sheet;
(k) intentionally omitted;
(l) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law);
(m) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate);
(n) has corrected any known misunderstanding regarding its status as a separate entity;
(o) has conducted all of its business;
(p) has not identified itself or any of its Affiliates as a division or part of the other;
(q) has maintained and utilized separate stationery, invoices and checks bearing its own name (if such items are used);
(r) has not maintained its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(s) has not commingled its assets with those of any other Person;
(t) has not guaranteed or become obligated for the debts of any other Person other than in connection with any tenant improvement allowance under an Approved Lease;
(u) has not held itself out as being responsible for the debts or obligations of any other Person other than in connection with any tenant improvement allowance under an Approved Lease;
(v) except in connection will indebtedness discharged on or prior to the Effective Date, has not pledged its assets to secure the obligations of any other Person and no such pledge remains outstanding except in connection with the Loan;
(w) has intended to maintain adequate capital in light of its contemplated business operations;
(x) has maintained a sufficient number of employees (if any) in light of its contemplated business operations (taking into account then applicable circumstances) and has paid the salaries of its own employees (if any) from its own funds, in each case to the extent sufficient cash flow from the Property was available to the Borrower; provided that the foregoing did not require the member or any other direct or indirect member of the Borrower to make any additional capital contributions to the Borrower;
(y) has not owned any subsidiary or any equity interest in any other entity;
(z) has not acquired obligations or securities of its managers, members or Affiliates, as applicable; and
(aa) has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan).
Appears in 1 contract
Past Activities. Borrower hereby represents and warrants to Lender that from the date of its formation to the Effective Date, Borrower:
(a) is and always has been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business, except where the failure to do so has not had a material adverse effect on Borrower and has been cured;
(b) has no tax judgments or tax liens of any nature against it that have not been paid except for tax liens not yet due;
(c) other than in connection with a tax appeal in connection with which all taxes have already been paid, is not currently involved in any dispute with any taxing authority except as disclosed to Lender in writing prior to the Effective Date;
(d) has paid all income and other material taxes which it owes, except such taxes Borrower is contesting in accordance with this Agreement;
(e) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property Collateral and has never engaged in any business other than or in connection with the ownership and operation of the PropertyCollateral;
(f) except as set forth on Schedule 7.3 hereof, is not now party to any lawsuit, arbitration, summons, or legal proceeding that is still pending as of the Effective Date, which is reasonably likely to have a material adverse effect on Borrower and not covered by insurance, or that resulted in a judgment against it that has not been paid in full;
(g) has not entered into any contract or agreement with any of its Affiliates, except upon terms and conditions that are no less favorable to it than those available in an arm’s-length transaction with an unrelated party;
(h) has paid all of its debts and liabilities that are due from its assets (including, without limitation, the PropertyCollateral) or from capital contributions from its equity owners;
(i) has done or caused to be done all material things necessary to observe all organizational formalities applicable to it and to preserve its existence;
(j) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person; provided, however, that the Borrower’s assets may have been included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation was made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (B) such assets shall be listed on Borrower’s Affiliate’s own separate balance sheet;
(k) intentionally omitted;
(l) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law);
(m) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate);
(n) has corrected any known misunderstanding regarding its status as a separate entity;
(o) has conducted all of its business;
(p) has not identified itself or any of its Affiliates as a division or part of the other;
(q) has maintained and utilized separate stationery, invoices and checks bearing its own name (if such items are used);
(r) has not maintained its assets in such a manner that will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(s) has not commingled its assets with those of any other Person;
(t) has not guaranteed or become obligated for the debts of any other Person other than in connection with any tenant improvement allowance under an Approved LeasePerson;
(u) has not held itself out as being responsible for the debts or obligations of any other Person other than in connection with any tenant improvement allowance under an Approved LeasePerson;
(v) except in connection will with indebtedness discharged on or prior to the Effective Date, has not pledged its assets to secure the obligations of any other Person and no such pledge remains outstanding except in connection with the Loan;
(w) has intended to maintain adequate capital in light of its contemplated business operations;
(x) has maintained a sufficient number of employees (if any) in light of its contemplated business operations (taking into account then applicable circumstances) and has paid the salaries of its own employees (if any) from its own funds, in each case to the extent sufficient cash flow from the Property was made available to the Borrower; provided that the foregoing did not require the member or any other direct or indirect member of the Borrower to make any additional capital contributions to the Borrower;
(y) has not owned any subsidiary or any equity interest in any entity other entitythan Mortgage Borrower;
(z) has not acquired obligations or securities of its managers, members or Affiliates, as applicable; and
(aa) has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan).
Appears in 1 contract