Single Purpose Entity/Separateness. Borrower represents, warrants and covenants as follows: (a) The purpose for which Borrower is organized is and shall be limited solely to (i) owning, holding, selling, leasing, subleasing transferring, exchanging, operating and managing the Property, (ii) entering into the Loan Documents with Lender, (iii) refinancing the Property in connection with a permitted repayment of the Loan and (iv) transacting any and all lawful business for which a Borrower may be organized under its constitutive law that is incident, necessary and appropriate to accomplish the foregoing. (b) Borrower does not own and will not own any asset or property other than (i) the Property, and (ii) incidental personal property necessary and convenient for and used or to be used in connection with the ownership or operation of the Property. (c) Borrower will not engage in any business other than the purposes as set forth in clause (a) above. (d) Other than the Management Agreement, Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower, any owner of Borrower, any guarantors of the obligations of Borrower or any Affiliate of any such constituent party, owner or guarantor (collectively, the "Related Parties"), except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not so affiliated with Borrower or such Related Parties. (e) Borrower has not incurred and will not incur any Indebtedness other than (i) the Loan and (ii) trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances, provided in no event shall such Indebtedness on this clause (ii) (A) exceed, in the aggregate, $4,000,000, (B) be evidenced by a note and (C) remain unpaid in excess of sixty (60) days from the date incurred (unless being contested in good faith by Borrower). No Indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Property. (f) Borrower has not made and will not make any loans or advances to any Person and shall not acquire obligations or securities of any Related Party. (g) Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due. (h) Borrower has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and will not, nor will it permit any Affiliate of Borrower to, amend, modify or otherwise change the organizational documents of Borrower in any material respect which adversely affects its existence as a single purpose entity or its other obligations with respect to the Loan without the prior written consent of Lender. (i) Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of any other Person and, except as required or permitted under GAAP, its assets will not be listed as assets on the financial statement of any other Person. Borrower will file its own tax returns and will not file a consolidated federal income tax return with any other Person (except that Borrower may file or may be part of a consolidated federal tax return to the extent required or permitted by applicable law); provided, however, that there shall be an appropriate notation indicating the separate existence of Borrower and its assets and liabilities. Borrower shall maintain its books, records, resolutions and agreements as official records. (j) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks or clearly indicate its separate existence in any correspondence sent by it or on its behalf. (k) Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. (l) Neither Borrower nor any Related Party will seek the dissolution, winding up, liquidation, consolidation or merger in whole or in part, or the sale of material assets of Borrower. (m) Borrower will not commingle its assets with those of any other Person and will hold all of its assets in its own name; (n) Borrower will not guarantee or become obligated for the debts of any other Person and does not and will not hold itself out as being responsible for the debts or obligations of any other Person. (o) Borrower shall be a single-member limited liability company organized under the laws of the State of Delaware. (p) Borrower shall at all times cause there to be at least two duly appointed Independent Managers of Borrower. (q) Borrower shall allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party. (r) Borrower shall not pledge its assets for the benefit of any other Person other than with respect to the Loan. (s) Borrower shall maintain a sufficient number of employees in light of its contemplated business operations or retain the services of agents or consultants therefor and pay the salaries of such employees, agents or consultants from its own funds. (t) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Nonconsolidation Opinion shall be true and correct in all material respects.
Appears in 1 contract
Single Purpose Entity/Separateness. Borrower represents, warrants and covenants as follows:
(a) The purpose for which Borrower is organized is and shall be limited solely to (i) owning, holding, selling, leasing, subleasing transferring, exchanging, operating and managing the Property, (ii) entering into the Loan Documents with Lender, (iii) refinancing the Property in connection with a permitted repayment of the Loan and (iv) transacting any and all lawful business for which a Borrower may be organized under its constitutive law that is incident, necessary and appropriate to accomplish the foregoing.
(b) Borrower does not own and will not own any asset or property other than (i) the Property, and (ii) incidental personal property necessary and convenient for and used or to be used in connection with the ownership or operation of the Property.
(c) Borrower will not engage in any business other than the purposes as set forth in clause (a) aboveownership, management and operation of the Property.
(d) Other than the Management Agreement, Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower, any owner of Borrower, any guarantors of the obligations of Borrower or any Affiliate of any such constituent party, owner or guarantor (collectively, the "Related Parties"), except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not so affiliated with Borrower or such Related Parties.
(e) Borrower has not incurred and will not incur any Indebtedness other than (i) the Loan and Loan, (ii) Indebtedness incurred in the financing of equipment and other personal property used on the Property, trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances, provided in no event shall such Indebtedness on this clause (ii) (A) exceed, in the aggregate, $4,000,000, (B) be debt is not evidenced by a note and (C) remain unpaid is not in excess of sixty (60) days from past due and does not exceed in the date incurred aggregate the amount of Three Million and No/100 Dollars (unless being contested in good faith by Borrower$3,000,000). No Indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty (provided that the fee owner of the portion of the Property demised by the Ground Lease may encumber its interests therein).
(f) Borrower has not made and will not make any loans or advances to any Person and shall not acquire obligations or securities of any Related Party.
(g) Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(h) Borrower has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will it Borrower permit any Affiliate of Borrower SPC to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect which adversely affects its existence as a single purpose entity or its other obligations with respect to the Loan such SPC without the prior written consent of Lender.
(i) Borrower will maintain all of separate financial statements, showing its books, records, financial statements assets and bank accounts liabilities separate and apart from those of any other Person and, except as required person or permitted under GAAP, entity and will not have its assets will not be listed as assets on the financial statement statements of any other Person. Borrower will file its own tax returns and will not file a Person except the consolidated federal income tax return with any financial statements of the REIT, which statements shall contain footnotes or other Person (except that Borrower may file or may be part of a consolidated federal tax return information to the extent required or permitted effect that the assets are owned by applicable law); provided, however, that there shall be an appropriate notation indicating the separate existence Single Purpose Entity and are not available to pay creditors of Borrower and its assets and liabilitiesthe REIT. Borrower shall maintain its books, records, resolutions and agreements as official records.
(j) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party), shall correct any known misunderstanding regarding its status as a separate entity, and shall conduct business in its own namename and from its own office, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks or clearly indicate checks; provided that business correspondence and other communications of Borrower may also be made by its separate existence in any correspondence sent by it or managing partner from its office when the managing partner is acting on its behalfbehalf of Borrower.
(k) Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither Borrower nor any Related Party SPC will seek the dissolution, winding up, liquidation, consolidation or merger in whole or in part, or the sale of material assets of Borrower.
(m) Borrower will not commingle its assets with those of any other Person and will hold all of its assets in its own name;
(n) Borrower will not guarantee or become obligated for the debts of any other Person and does not and will not hold itself out as being responsible for the debts or obligations of any other Person.
(o) If Borrower is a limited partnership or a limited liability company, at least one general partner or member, or if Borrower is a general partnership at least two general partners (an "SPC Party") shall be a single-member limited liability company organized under the laws corporation whose sole asset is its interest in Borrower and such SPC Party will at all times comply, and will cause Borrower to comply, with each of the State representations, warranties, and covenants contained in this Section 4.1.30 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of Delawarethe SPC Party from Borrower, Borrower shall immediately appoint a new member whose articles of incorporation are substantially similar to those of the SPC Party and deliver a new Insolvency Opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(p) Borrower shall at all times cause there to be at least two one duly appointed member of the board of directors (an "Independent Managers Director") of Borrower.
Borrower (qif a corporation) or of each SPC Party reasonably satisfactory to Lender who is not at the time of initial appointment or while serving as Independent Director and has not been, at any time during the preceding five (5) years, a stockholder, director (other than an Independent Director), officer, employee, partner, attorney or counsel of (i) the Prime Group, Inc., an Illinois corporation, or any of its Affiliates; (ii) the Operating Partnership or any of its Affiliates (except as an independent director on the board of directors of Finance and certain other corporations, each a single purpose entity); (iii) Finance, the Partnership or any of their Affiliates (except as an independent director on the board of directors of Finance and certain other corporations, each a single purpose entity (collectively, the "Prime Entities"); (iv) a customer, supplier or other Person who derives more than 10% of its purchases or revenues from its activities with any of the Prime Entities, Borrower shall allocate fairly and reasonably or such SPC Party or any overhead expenses that are shared Affiliate of either of them; (v) a Person controlling, controlled by, or under common control with an Affiliateany such stockholder, including paying for office space and services performed by any employee partner, customer, supplier or other Person; or (vi) a member of an Affiliate or Related Party.
(r) Borrower shall not pledge its assets for the benefit immediate family of any other Person other than with respect described in clauses (i), (ii) or (iii). (As used herein, the term "control" means the possession, directly or indirectly, of the power to direct or cause the Loandirection of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(s) Borrower shall maintain a sufficient number of employees in light of its contemplated business operations or retain the services of agents or consultants therefor and pay the salaries of such employees, agents or consultants from its own funds.
(t) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Nonconsolidation Opinion shall be true and correct in all material respects.)
Appears in 1 contract
Single Purpose Entity/Separateness. Borrower represents▇▇▇▇▇▇ hereby represents and warrants to, warrants and covenants with, Lender that as followsof the date hereof and until such time as the Loan shall be paid in full:
(a) The purpose for which Borrower is organized is and shall be limited solely to (i) owning, holding, selling, leasing, subleasing transferring, exchanging, operating and managing the Property, (ii) entering into the Loan Documents with Lender, (iii) refinancing the Property in connection with a permitted repayment of the Loan and (iv) transacting any and all lawful business for which a Borrower may be organized under its constitutive law that is incident, necessary and appropriate to accomplish the foregoing.
(b) Borrower ▇▇▇▇▇▇ does not own and will not own any asset or property other than (i) the Property, and (ii) incidental personal property necessary and convenient for and used or to be used in connection with the ownership or operation of the Property.
(cb) Borrower ▇▇▇▇▇▇ will not engage in any business other than the purposes ownership, management and operation of the Property and activities incidental thereto and ▇▇▇▇▇▇ will conduct and operate its business substantially as set forth in clause (a) abovepresently conducted and operated. ▇▇▇▇▇▇ shall not pledge its assets for the benefit of any other person or entity.
(dc) Other than the Management Agreement, Borrower ▇▇▇▇▇▇ will not enter into any contract or agreement with any Affiliate affiliate of Borrower▇▇▇▇▇▇, any constituent party of Borrower▇▇▇▇▇▇, any owner of Borrower, any guarantors of the obligations of Borrower Guarantor or any Affiliate affiliate of any such constituent party, owner party or guarantor (collectively, the "Related Parties")Guarantor, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not so affiliated other than any such party. ▇▇▇▇▇▇ will allocate fairly and reasonably any overhead expenses that are shared with Borrower or such Related Partiesan affiliate, including paying for office space and services performed by any employee of an affiliate.
(ed) Borrower ▇▇▇▇▇▇ has not incurred and will not incur any Indebtedness indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (i) the Loan and or (ii) unsecured trade and operational debt customarily payable within thirty (30) days incurred in the ordinary course of business with trade creditors and in amounts and upon terms of repayment as are normal and reasonable under the circumstances, provided in no event shall such Indebtedness on this clause (ii) (A) exceed, in the aggregate, $4,000,000, (B) be evidenced by a note and (Ciii) remain unpaid in excess of sixty (60indebtedness permitted under Section 3.01(f) days from the date incurred (unless being contested in good faith by Borrower). No Indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Propertyhereof.
(fe) Borrower ▇▇▇▇▇▇ has not made and will not make any loans or advances to any Person third party (including any affiliate or constituent party, any Guarantor or any affiliate of any constituent party or Guarantor), and shall not acquire obligations or securities of its affiliates or any Related Partyconstituent party and shall not hold evidence of indebtedness issued by any other person or entity (other than cash and investment-grade securities).
(gf) Borrower ▇▇▇▇▇▇ is and will remain solvent and Borrower ▇▇▇▇▇▇ will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(hg) Borrower ▇▇▇▇▇▇ has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and ▇▇▇▇▇▇ will not, nor will it ▇▇▇▇▇▇, except as specifically permitted under Section 3.03 hereof, permit any Affiliate of Borrower to, constituent party or Guarantor to amend, modify or otherwise change the organizational documents of Borrower in any material respect which adversely affects its existence as a single purpose entity the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or its other obligations with respect to the Loan organizational documents of ▇▇▇▇▇▇, or such constituent party or Guarantor without the prior written consent of LenderMortgagee.
(ih) Borrower ▇▇▇▇▇▇ will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates and any other Person and, except as required or permitted under GAAP, its assets will not be listed as assets on the financial statement of any other Person. Borrower constituent party and ▇▇▇▇▇▇ will file its own tax returns and will not file a consolidated federal income tax return with any other Person (except that Borrower may file or may be part of a consolidated federal tax return to the extent required or permitted by applicable law); provided, however, that there shall be an appropriate notation indicating the separate existence of Borrower and its assets and liabilitiesreturns. Borrower ▇▇▇▇▇▇ shall maintain its books, records, resolutions and agreements as official records.
(ji) Borrower ▇▇▇▇▇▇ will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other Person entity (including any Affiliate affiliate of ▇▇▇▇▇▇, any constituent party of ▇▇▇▇▇▇, any Guarantor or other Related Partyany affiliate of any constituent party or Guarantor), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks or clearly indicate its separate existence in any correspondence sent by it or on its behalfchecks.
(kj) Borrower ▇▇▇▇▇▇ will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(lk) Neither Borrower ▇▇▇▇▇▇ nor any Related Party constituent party will seek or effect the dissolution, winding up, sale of assets, liquidation, consolidation or merger merger, in whole or in part, or of ▇▇▇▇▇▇.
(l) ▇▇▇▇▇▇ will not commingle the sale of material funds and other assets of Borrower▇▇▇▇▇▇ with those of any affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other person.
(m) Borrower ▇▇▇▇▇▇ has and will maintain its assets in such a manner that it will not commingle be costly or difficult to segregate, ascertain or identify its individual assets with from those of any affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other Person and will hold all of its assets in its own name;person.
(n) Borrower will not guarantee or become obligated for the debts of any other Person and ▇▇▇▇▇▇ does not and will not hold itself out as being to be responsible for the debts or obligations of any other Personperson or entity and does not and will not guarantee the debts or obligations of any other person or entity.
(o) Borrower ▇▇▇▇▇▇ shall be a single-member limited liability company organized under not hold out its credit as being available to satisfy the laws obligations of the State of Delawareany other person or entity.
(p) Borrower ▇▇▇▇▇▇ shall pay the salaries of its own employees from its own funds.
(q) If ▇▇▇▇▇▇ is a limited partnership or a limited liability company, a general partner or a member (an "SPC Member"), of ▇▇▇▇▇▇ is and shall at all times be a corporation whose sole asset is its interest in ▇▇▇▇▇▇, and each such general partner or SPC Member will at all times comply, and will cause ▇▇▇▇▇▇ to comply, with each of the representations, warranties and covenants contained in this Section 3.15 as if such representation, warranty or covenant was made directly by such general partner or SPC Member.
(r) ▇▇▇▇▇▇ shall at all times cause there to be at least one (or two if required by the Rating Agencies) duly appointed member of the board of directors (an "Independent Managers Director") of Borrower.
(q) Borrower shall allocate fairly and each SPC Member of ▇▇▇▇▇▇, as applicable, reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party.
(r) Borrower satisfactory to Mortgagee who shall not pledge have been at the time of such individual's appointment, and may not have been at any time during the preceding five years (i) a shareholder of, or an officer, director, partner, attorney or counsel or employee of, ▇▇▇▇▇▇ or any of its assets for the benefit shareholders, subsidiaries or affiliates, (ii) a customer of, or supplier to, ▇▇▇▇▇▇ or any of its shareholders, subsidiaries or affiliates which derives more than 10% of its revenues from its activities with Mortgagor or such shareholders, subsidiaries or affiliates, (iii) a person or other entity controlling or under common control with any such shareholder, partner, supplier or customer, or (iv) a Family Member of any other Person other than with respect such shareholder, officer, director, partner, employee, supplier or customer. As used in this Section 3.15, the term "control" means the possession, directly or indirectly, of the power to direct or cause the Loandirection of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(s) Borrower ▇▇▇▇▇▇ shall maintain a sufficient number not cause or permit the board of employees in light directors of its contemplated business operations the SPC Member to take any action which, under the terms of any certificate of incorporation, by-laws or retain any voting trust agreement with respect to any common stock, requires the services vote of agents or consultants therefor and pay the salaries board of directors of the SPC Member, unless at the time of such employees, agents or consultants from its own fundsaction there shall be at least one member who is an Independent Director.
(t) Borrower ▇▇▇▇▇▇ shall conduct its business so that the assumptions made with respect to Borrower ▇▇▇▇▇▇ in that certain opinion letter (the Nonconsolidation Opinion "Non-Consolidation Opinion") dated the date hereof delivered by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in connection with this Mortgage shall be true and correct in all material respects.
Appears in 1 contract
Sources: Leasehold Mortgage, Security Agreement and Fixture Financing Statement (Overseas Partners LTD)
Single Purpose Entity/Separateness. Borrower represents, warrants and covenants as follows:
(a) The purpose for which Borrower is organized is and shall be limited solely to (i) acquiring, owning, holding, selling, leasing, subleasing transferringoperating, exchangingmanaging, operating maintaining, developing and managing improving the Property, (ii) entering into and performing its obligations under this Agreement and the other Loan Documents with LenderDocuments, (iii) selling, transferring, servicing, conveying, disposing of, pledging, assigning, borrowing money against, financing, refinancing or otherwise dealing with the Property in connection with a to the extent permitted repayment of by this Agreement and the other Loan Documents, and (iv) transacting engaging in any lawful act or activity and all lawful business for which a Borrower may be exercising any powers permitted to limited liability companies organized under its constitutive law the laws of the State of Delaware that is incidentare related or incidental to and necessary, necessary and appropriate to accomplish convenient or advisable for the foregoingaccomplishment of the above-mentioned purposes.
(b) Borrower does not own own, has not owned and will not own any asset or property other than (i) the Property, and (ii) incidental personal property necessary and convenient for and used or to be used in connection with the ownership or operation of the Property.
(c) Borrower has not engaged in and will not engage in any business other than the purposes as set forth in clause (a) aboveownership, management and operation of the Property.
(d) Other than the Management Agreement, Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower, any owner of Borrower, any guarantors guarantor of the obligations of Borrower or any Affiliate of any such constituent party, owner or guarantor (individually, a “Related Party” and collectively, the "“Related Parties"”), except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not so affiliated with Borrower or such Related Parties.
(e) Borrower has not incurred and will not incur any Indebtedness other than (i) the Loan and Loan, (ii) trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances, provided in no event shall such Indebtedness on this clause (ii) (A) exceed, in the aggregate, $4,000,000, (B) be debt is not evidenced by a note and (C) remain unpaid is not in excess of sixty (60) days past due and which do not exceed, in the aggregate, an outstanding and unpaid amount of $5,000,000 and (iii) Capital Expenditures (taking into account all Capital Expenditures which are ongoing or which have not been paid in full), provided that the debt identified in clause (iii) in the aggregate does not exceed $5,000,000 from the date incurred (unless being contested in good faith by Borrower)time to time. No Indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Property.
(f) Borrower has not made and will not make any loans or advances to any Person and shall not acquire obligations or securities of any Related Party.
(g) Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(h) Borrower has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will it Borrower permit any Affiliate of Borrower Related Party to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect which adversely affects its existence as a single purpose entity or its other obligations with respect to the Loan without the prior written consent of Lender.
(i) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of any other Person and, except as required or permitted under GAAP, its assets will not be listed as assets on the financial statement of any other Person. Borrower has filed and will file its own tax returns and will not file a consolidated federal income tax return with any other Person (except that Borrower may file or may be part of a consolidated federal tax return to the extent required or permitted by applicable law); , provided, however, that there shall be an appropriate notation indicating the separate existence of Borrower and its assets and liabilities. Borrower shall maintain its books, records, resolutions and agreements as official recordsagreements.
(j) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks or clearly indicate its separate existence in any correspondence sent by it or on its behalfchecks.
(k) Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither Borrower nor any Related Party will seek the dissolution, winding up, liquidation, consolidation or merger in whole or in part, or the sale of material assets of Borrower.
(m) Borrower will not commingle its assets with those of any other Person and will hold all of its assets in its own name;
(n) Borrower will not guarantee or become obligated for the debts of any other Person and does not and will not hold itself out as being responsible for the debts or obligations of any other Person.
(o) Borrower shall (i) be a single-single member limited liability company organized under the laws of the State of DelawareDelaware and (ii) contain in its operating agreement the representations, warranties and covenants contained in this Section 4.1.30.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed Independent Managers of Borrower.
(q) Borrower shall not cause or permit the board of managers of Borrower to take any action which, under the terms of any of its organizational documents requires the vote of the board of managers of Borrower unless at the time of such action there shall be at least two (2) members of the board of managers of Borrower who are each an Independent Manager.
(r) Borrower shall allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party.
(rs) Borrower shall has not pledged and will not pledge its assets for the benefit of any other Person other than with respect to the Loan.
(st) Borrower shall maintain a sufficient number of employees in light of its contemplated business operations or retain the services of agents or consultants therefor and pay the salaries of such employees, agents or consultants its own employees from its own funds.
(tu) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Nonconsolidation Insolvency Opinion shall be true and correct in all material respects.
Appears in 1 contract
Single Purpose Entity/Separateness. Borrower represents, warrants and covenants as follows:
(a) The purpose for which Borrower is organized is and shall be limited solely to (i) acquiring, owning, holding, selling, leasing, subleasing transferringoperating, exchangingmanaging, operating maintaining, developing and managing improving the PropertyProperties, (ii) entering into and performing its obligations under this Agreement and the other Loan Documents with LenderDocuments, (iii) selling, transferring, servicing, conveying, disposing of, pledging, assigning, borrowing money against, financing, refinancing or otherwise dealing with the Property in connection with a Properties to the extent permitted repayment of by this Agreement and the other Loan Documents, and (iv) transacting engaging in any lawful act or activity and all lawful business for which a Borrower may be exercising any powers permitted to limited liability companies organized under its constitutive law the laws of the State of Delaware that is incidentare related or incidental to and necessary, necessary and appropriate to accomplish convenient or advisable for the foregoingaccomplishment of the above-mentioned purposes.
(b) Borrower does not own own, has not owned and will not own any asset or property other than (i) the PropertyProperties, and (ii) incidental personal property necessary and convenient for and used or to be used in connection with the ownership or operation of the PropertyProperties.
(c) Borrower has not engaged in and will not engage in any business other than the purposes as set forth in clause (a) aboveownership, management and operation of the Properties.
(d) Other than the Management Agreement, Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower, any owner of Borrower, any guarantors guarantor of the obligations of Borrower or any Affiliate of any such constituent party, owner or guarantor (individually, a “Related Party” and collectively, the "“Related Parties"”), except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not so affiliated with Borrower or such Related Parties.
(e) Borrower has not incurred and will not incur any Indebtedness other than (i) the Loan and Loan, (ii) trade and operational debt incurred in the ordinary course of business with trade creditors in amounts as are normal and reasonable under the circumstances, provided in no event shall such Indebtedness on this clause (ii) (A) exceed, in the aggregate, $4,000,000, (B) be debt is not evidenced by a note and (C) remain unpaid is not in excess of sixty (60) days from past due and which do not exceed, in the date incurred aggregate, an outstanding and unpaid amount equal to five percent (unless being contested in good faith 5%) of the outstanding principal balance of the Loan, not including amounts for which Borrower is to be reimbursed within sixty (60) days by BorrowerWachovia pursuant to the terms and conditions of any Wachovia Lease (“Trade Debt”). No Indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(f) Borrower has not made and will not make any loans or advances to any Person and shall not acquire obligations or securities of any Related Party.
(g) Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(h) Borrower has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will it Borrower permit any Affiliate of Borrower Related Party to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect which adversely affects its existence as a single purpose entity or its other obligations with respect to the Loan without the prior written consent of Lender.
(i) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of any other Person and, except as required or permitted under GAAP, its assets will not be listed as assets on the financial statement of any other Person. Borrower has filed and will file its own tax returns and will not file a consolidated federal income tax return with any other Person (except that Borrower may file or may be part of a consolidated federal tax return to the extent required or permitted by applicable law); , provided, however, that there shall be an appropriate notation indicating the separate existence of Borrower and its assets and liabilities. Borrower shall maintain its books, records, resolutions and agreements as official recordsagreements.
(j) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks or clearly indicate its separate existence in any correspondence sent by it or on its behalfchecks.
(k) Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither Borrower nor any Related Party will seek the dissolution, winding up, liquidation, consolidation or merger in whole or in part, or the sale of material assets of Borrower.
(m) Borrower will not commingle its assets with those of any other Person and will hold all of its assets in its own name;
(n) Borrower will not guarantee or become obligated for the debts of any other Person and does not and will not hold itself out as being responsible for the debts or obligations of any other Person.
(o) Borrower shall (i) be a single-single member limited liability company organized under the laws of the State of DelawareDelaware and (ii) contain in its operating agreement the representations, warranties and covenants contained in this Section 4.1.30.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed Independent Managers of Borrower.
(q) Borrower shall not cause or permit the board of managers of Borrower to take any action which, under the terms of any of its organizational documents requires the vote of the board of managers of Borrower unless at the time of such action there shall be at least two (2) members of the board of managers of Borrower who are each an Independent Manager.
(r) Borrower shall allocate fairly and reasonably any overhead expenses that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party.
(rs) Borrower shall has not pledged and will not pledge its assets for the benefit of any other Person other than with respect to the Loan.
(st) Borrower shall maintain a sufficient number of employees in light of its contemplated business operations or retain the services of agents or consultants therefor and pay the salaries of such employees, agents or consultants its own employees from its own funds.
(tu) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Nonconsolidation Insolvency Opinion shall be true and correct in all material respects.
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