Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full: (a) Borrower does not own and will not own any asset or property other than (i) its interest in the Property, and (ii) incidental personal property necessary for the ownership or operation of the Property. (b) Borrower will not engage in any business other than the ownership, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated. (c) Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party. (d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above and
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or property other than (i) its interest in the Individual Property, and (ii) incidental personal property or other assets necessary for the ownership or operation of the Individual Property.
(b) Borrower will not engage in any business other than the ownership, management and operation of the Property Individual Property, entering into the Loan as a co-borrower and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on at the Individual Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars three percent ($4,000,000.003%) in of the aggregateAllocated Loan Amount, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above andabove, subject only to Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the provisions of this Agreement and (z) incurred in the ordinary course of
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender with regard to itself only and no other Borrower, that as of the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower does not own and None of Borrowers owns or will not own any asset or property other than (i) its interest in the Property, respective Property and (ii) incidental personal property necessary for the ownership or operation of the such Property.
(b) Borrower None of Borrowers has engaged or will not engage in any business other than the ownership, management and operation of the its respective Property and Borrower each of Borrowers will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of any Borrower, any constituent party of any Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(d) Such Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and (ii) unsecured trade payables and short term operational debt not evidenced by a note and (iii) Indebtedness incurred in an aggregate amount, including such trade payables and debt of any other Borrower, not exceeding $5,000,000.00 in the financing of equipment and other personal property used on the Propertyaggregate at any one time; provided that any Indebtedness incurred pursuant to subclauses subclause (ii) and (iii) shall be (xA) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid outstanding not more than sixty (60) days from days, and (B) incurred in the date incurred as to ordinary course of business (the matters Indebtedness described in subclause the foregoing clauses (i) and (ii) above is referred to herein, collectively, as "Permitted Indebtedness"). No Indebtedness other than the Debt may be secured (subordinate or pari passu) by any of the Properties. Notwithstanding the foregoing, so long as no Event of Default shall have occurred and remain uncured under this Agreement, Borrowers shall be allowed to borrow Permitted Mezzanine Debt subsequent to the Closing Date; provided that, prior to consummating any such proposed Permitted Mezzanine Debt, (i) Borrowers shall provide written notice to Lender of any proposed Permitted Mezzanine Debt financing, including a summary of the material terms and conditions thereof, (ii) if the Loan has not more than sixty (60) days been securitized, Borrowers shall obtain Lender's prior written consent, which shall not be unreasonably withheld or delayed, and if the Loan has been securitized, Borrowers shall obtain a "No Downgrade" letter from the date due as to the matters in subclause Rating Agencies, (iii) above the holder of such Permitted Mezzanine Debt shall enter into an intercreditor agreement with Lender, reasonably satisfactory to Lender in form and substance, and (iv) Borrowers shall provide Lender with true and complete copies of all loan documents entered into in connection with any such Permitted Mezzanine Debt. Nothing contained in this Agreement of the other Loan Documents shall be deemed to prohibit any indirect owner of any Borrower from incurring indebtedness; provided that any such indebtedness is not secured by any direct interest in any of the Properties or any Borrower.
(e) Such Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire securities of its Affiliates.
(f) Such Borrower is and will remain solvent and, except as contemplated by this Agreement wherein Borrowers are jointly and severally liable, such Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Such Borrower has done or caused to be done, and will do, all things necessary to observe organizational formalities and preserve its existence, and such Borrower will not (i) terminate or fail to comply with the provisions of its organizational documents, or (ii) unless (A) Lender has consented and (B) following a Securitization of the Loan, the applicable Rating Agencies have issued a Rating Agency Confirmation, amend, modify or otherwise change its operating agreement or other organizational documents in any material respect, provided that any amendment or modification to provisions required to be included in Borrowers' organizational documents pursuant to this Agreement shall be deemed material.
(h) Such Borrower will maintain separate books, records, financial statements and bank accounts from those of its Affiliates and any other Person. Such Borrower's assets will not be listed as assets on the financial statement of any other Person, provided, however, that such Borrower's assets may be included in a consolidated financial statement of its Affiliates provided that appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Borrower. Such Borrower will file its own tax returns (to the extent such Borrower is required to file any tax returns) and will not file a consolidated federal income tax return with any other Person unless permitted or required by applicable law or requirement. Such Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Such Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of such Borrower or any constituent party of such Borrower), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name.
(j) Such Borrower has maintained and intends to 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.
(k) Neither such Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation, asset sale or merger, in whole or in part, of such Borrower.
(l) Except as contemplated by this Agreement, wherein Borrowers are jointly and severally liable, and further, pursuant to the Clearing Account Agreement, such Borrower has not and will not commingle the funds and other assets of such Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets in its own name.
(m) Such Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Except as contemplated by this Agreement, such Borrower has not and will not assume or guarantee or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of such Borrower shall provide that the business and affairs of such Borrower shall be managed by or under the direction of a board of one or more directors or managers designated by Sole Member, and at all times there shall be at least two (2) duly appointed individuals on the board of directors or managers against Borrower (each, an "Independent Director") of such Borrower who shall not have been at the time of such individual's appointment or at any time (except pursuant to an express provision in such Borrower's operating agreement providing for the appointment of such Independent Director to become a "special member" upon Sole Member ceasing to be a member of such Borrower) while serving as an Independent Director, and may not have been at any time during the preceding five (5) years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of such Borrower, any Affiliate of such Borrower or any direct or indirect parent of such Borrower, except to the extent such Independent Director serves in such capacity in respect of any other Borrower, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such Borrower or any Affiliate of such Borrower, (iii) a Person or other entity Controlling or under common Control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since Borrower’s creation, as of the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower has not owned, does not own and will not own any asset or property other than (i) its interest in the Property, and (ii) incidental personal property necessary for the ownership or operation of the Property.
(b) Borrower has not engaged, does not engage, and will not engage in any business other than the ownership, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, Debt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (iii1%) Indebtedness incurred in of the financing original principal amount of equipment and other personal property used on the PropertyLoan at any one time; provided that any Indebtedness incurred pursuant to subclauses subclause (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid not more than sixty (60) days past due and (y) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.
(f) Borrower is and intends to remain solvent and Borrower has and intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the date incurred same shall become due; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(g) 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 terminate or fail to comply with the provisions of its organizational documents, or amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents.
(h) Borrower has maintained and will maintain all of its accounts, books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been and will not be listed as assets on the financial statement of any other Person, provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has and will file its own tax returns (to the extent Borrower is required to file any such tax returns) and will not file a consolidated federal income tax return with any other Person. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower has been and will be, and has and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other, and has and shall maintain and utilize separate invoices and checks bearing its own name.
(j) Borrower has maintained and intends to 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; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Borrower has not and will not assume or guarantee or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(o) Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all the representations, warranties and covenants in this Section 3.1.24, and (ii) all the organizational documents of Borrower.
(p) Borrower has not permitted and will not permit any Affiliate or constituent party independent access to its bank accounts.
(q) Borrower has paid and shall pay the salaries of its own employees (if any) from its own funds and has and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(r) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(s) Borrower has not, and without the unanimous consent of all of its members, partners, directors or managers (including each Independent Director) will not, take any action that might cause Borrower to become insolvent.
(t) Borrower has allocated and will allocate fairly and reasonably shared expenses, including shared office space.
(u) Except in connection with the Loan, Borrower has not pledged and will not pledge its assets for the benefit of any other Person.
(v) Borrower either (i) has no, and will have no, obligation to indemnify its officers, directors, managers, members or partners, as the case may be, or (ii) if it has any such obligation, such obligation is fully subordinated to the Debt and will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(w) Borrower will consider the interests of Borrower’s creditors in connection with all limited liability company or limited partnership actions.
(x) Except as provided in the Loan Documents, Borrower has not and will not have any of its obligations guaranteed by any Affiliate.
(y) The organizational documents of Borrower shall provide that except as may be expressly permitted herein as long as any portion of the Obligations remain outstanding, Borrower will not without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed:
(i) except in connection with a sale or other transfer permitted under the Loan Documents, sell all or substantially all of its assets;
(ii) amend its organizational documents with respect to the matters set forth in subclause (ii) above and not more than sixty (60) days from this Section 3.1.24, without the date due as to the matters in subclause (iii) above andconsent of Lender; or
Appears in 1 contract
Sources: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:full (unless otherwise hereafter consented to by Lender or, if the Loan has been included in a Securitization, unless a Rating Agency Confirmation is received):
(a) Borrower does not own and will not own any asset or property other than (i) its interest in the Property, and (ii) incidental personal property necessary for the ownership or operation of the PropertyProperty and (iii) Permitted Investments, cash and cash equivalents.
(b) Borrower will not engage engage, directly or indirectly, in any business other than the ownership, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Except for capital contributions or distributions permitted under the terms and conditions of Borrower’s operating agreements and properly reflected on the books and records of Borrower, Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any such constituent party, 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 other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid not more than sixty (60) days past due, (y) incurred in the ordinary course of business and (z) not more than five percent (5%) of the outstanding principal amount of the Loan at any one time. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property, except that any permitted equipment financing or equipment lease may be secured by such equipment.
(e) Borrower has not made and will not make any loans or advances in the nature of loans to any other Person (including any Affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates or owners or any other Person (except for securities that are Permitted Investments).
(f) Subject to there being sufficient revenues from the date incurred Property, 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.
(g) Borrower has done or caused to be done and will do all things necessary to observe all applicable organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to, amend, modify or otherwise change the matters partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower without the prior consent of Lender in subclause any manner that (i) violates or is inconsistent with any of the single purpose covenants set forth in this Section 3.1.24, or (ii) above amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets will not more than sixty be listed as assets on the financial statement of any other Person, provided, however, Borrower’s assets may be included in a consolidated financial statement of any Affiliate provided that (60i) days from inclusion on such consolidated financial statement is in accordance with the date due as requirements of GAAP (or such other accounting method reasonably acceptable to Lender), (ii) such consolidated financial statement shall contain a footnote to the matters in subclause effect that Borrower’s assets are owned by Borrower and (iii) above andsuch assets are listed on Borrower’s own separate balance sheet. Borrower will file its own tax returns unless Borrower is a tax-disregarded entity not required to file tax returns under applicable law and if Borrower is a corporation will not file a consolidated federal income tax return with any other Person. Borrower shall pay any taxes required to be paid under applicable law. Borrower shall maintain its books, records, resolutions (if any) and agreements as official records.
(i) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), 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 bearing its own name.
(j) Subject to there being sufficient revenues from the Property, 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.
(k) To the fullest extent permitted by law, neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other 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 to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(i) If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”) shall be a corporation whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(ii) If Borrower is a single member Delaware limited liability company, Borrower shall at all times have either a Delaware corporation or two (2) Independent Directors as Borrower’s springing member(s) which, upon the dissolution of the sole member of Borrower or the withdrawal or the disassociation of the sole member from Borrower, shall immediately become the sole member(s) of Borrower.
(p) Borrower shall at all times cause there to be at least two duly appointed members of the board of directors of each SPC Party (if any) or, if Borrower is a single member Delaware limited liability company, at least two duly appointed managers of Borrower who in each case are provided by a nationally recognized company that provides professional independent directors or managers (each, an “Independent Director”) who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party or manager of such Borrower, and may not have been at any time during the preceding five years, (i) a stockholder, director (other than as an Independent Director of such SPC party), officer, manager (other than as Independent Director of Borrower, if Borrower is a single member limited liability company), employee, partner, member, attorney or counsel of such SPC Party, Borrower or any Affiliate of any of them, (ii) a creditor, customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than a Person provided to serve as Independent Director by a company that provides professional independent directors or managers or other general corporate services to Borrower, such SPC Party or any Affiliate of either of them), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since Borrower’s creation, as of the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower has not owned, does not own and will not own any asset or property other than (i) its interest in the Property, and (ii) incidental personal property necessary for the ownership or operation of the Property.
(b) Borrower has not engaged, does not engage, and will not engage in any business other than the ownership, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, Debt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (iii1%) Indebtedness incurred in of the financing original principal amount of equipment and other personal property used on the PropertyLoan at any one time; provided that any Indebtedness incurred pursuant to subclauses subclause (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid not more than sixty (60) days past due and (y) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.
(f) Borrower is and intends to remain solvent and Borrower has and intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the date incurred same shall become due; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(g) 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 terminate or fail to comply with the provisions of its organizational documents, or amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents.
(h) Borrower has maintained and will maintain all of its accounts, books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been and will not be listed as assets on the financial statement of any other Person, provided, however, that Borrower’s assets may be included in a EAST\53909776.4 consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has and will file its own tax returns (to the extent Borrower is required to file any such tax returns)and will not file a consolidated federal income tax return with any other Person. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower has been and will be, and has and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other, and has and shall maintain and utilize separate invoices and checks bearing its own name.
(j) Borrower has maintained and intends to 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; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Borrower has not and will not assume or guarantee or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(o) Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all the representations, warranties and covenants in this Section 3.1.24, and (ii) all the organizational documents of Borrower.
(p) Borrower has not permitted and will not permit any Affiliate or constituent party independent access to its bank accounts.
(q) Borrower has paid and shall pay the salaries of its own employees (if any) from its own funds and has and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not be EAST\53909776.4 interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(r) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(s) Borrower has not, and without the unanimous consent of all of its members, partners, directors or managers (including each Independent Director) will not, take any action that might cause Borrower to become insolvent.
(t) Borrower has allocated and will allocate fairly and reasonably shared expenses, including shared office space.
(u) Except in connection with the Loan, Borrower has not pledged and will not pledge its assets for the benefit of any other Person.
(v) Borrower either (i) has no, and will have no, obligation to indemnify its officers, directors, managers, members or partners, as the case may be, or (ii) if it has any such obligation, such obligation is fully subordinated to the Debt and will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(w) Borrower will consider the interests of Borrower’s creditors in connection with all limited liability company or limited partnership actions.
(x) Except as provided in the Loan Documents, Borrower has not and will not have any of its obligations guaranteed by any Affiliate.
(y) The organizational documents of Borrower shall provide that except as may be expressly permitted herein as long as any portion of the Obligations remain outstanding, Borrower will not without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed:
(i) except in connection with a sale or other transfer permitted under the Loan Documents, sell all or substantially all of its assets;
(ii) amend its organizational documents with respect to the matters set forth in subclause (ii) above and not more than sixty (60) days from this Section 3.1.24, without the date due as to the matters in subclause (iii) above andconsent of Lender; or
Appears in 1 contract
Sources: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or property other than (i) its interest in the PropertyIndividual Property(ies), and (ii) incidental personal property or other assets necessary for the ownership or operation of the Propertyits Individual Property(ies).
(b) Borrower will not engage in any business other than the ownership, management and operation of the Property Individual Properties, entering into the Loan as a co-borrower and such Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower will not enter into any contract or agreement with any Affiliate of BorrowerBorrowers, any constituent party of Borrower Borrowers or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on at the PropertyIndividual Property(ies) that it owns; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) for each Individual Property, not in excess of Four Million and No/100 Dollars three percent ($4,000,000.003%) of the Allocated Loan Amount for such Individual Property in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above andabove, subject only to such Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the provisions of this Agreement and (z) incurred in the ordinary course of business. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by any of the Individual Properties except with respect to the Guaranty of Other Loans and the Guaranty Security Documents delivered by each Borrower in connection therewith.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates.
(f) Borrower is and will remain solvent and such Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) 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 Borrower permit any constituent 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 or such constituent party without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 3.1.24, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements (or the notes thereto) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower will file its own tax returns (to the Borrower is required to file any such tax returns) and will not file a consolidated federal income tax return with any other Person except to the extent Borrower is a disregarded entity for federal income tax purposes. Borrower shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), 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.
(j) 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.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Borrower will not guarantee, other than as set forth in the Guaranty of Other Loans, or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(i) If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”), as applicable, shall be a corporation or a Delaware single member limited liability company acceptable to Lender whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(ii) If Borrower or any SPC Party of Borrower is a single member limited liability company, Borrower or such SPC Party shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower or such SPC Party, shall immediately become the sole member of Borrower or such SPC Party, and the other of which shall become the sole member of Borrower or such SPC Party if the first such springing member no longer is available to serve as such sole member.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed members of the board of directors of each SPC Party and the Borrower who are provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and which are reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than as an Independent Director), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a “special purpose entity” affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower shall not be disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) Borrower shall not cause or permit the board of directors of any SPC Party and Borrower to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a unanimous vote of the board of directors of each SPC Party and Borrower unless at the time of such action there shall be at least two members who are each an Independent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(s) Borrower will not permit any Affiliate or constituent party independent access to its bank accounts other than a Manager approved by Lender, and then in such circumstances, only in accordance with the terms of its respective Management Agreement.
(t) Borrower shall pay the salaries of its own employees (if any) from its own funds and maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred.
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or property other than (i) its interest in the PropertyIndividual Properties, and (ii) incidental personal property or other assets necessary for the ownership or operation of the PropertyIndividual Properties.
(b) Borrower will not engage in any business other than the ownership, management and operation of the Property Individual Properties, entering into the Loan as a co-borrower and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on at the PropertyIndividual Properties; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) for each Individual Property, not in excess of Four Million and No/100 Dollars three percent ($4,000,000.003%) of the Allocated Loan Amount for such Individual Property in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above andabove, subject only to Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the provisions of this Agreement and (z) incurred in the ordinary course of business. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by any of the Individual Properties.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates.
(f) 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.
(g) 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 Borrower permit any constituent 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 or such constituent party without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 3.1.24, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements (or the notes thereto) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower will file its own tax returns (to the Borrower is required to file any such tax returns) and will not file a consolidated federal income tax return with any other Person except to the extent Borrower is a disregarded entity for federal income tax purposes. Borrower shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), 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.
(j) 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.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other 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 to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(i) If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”), as applicable, shall be a corporation or a Delaware single member limited liability company acceptable to Lender whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(ii) If Borrower or any SPC Party of Borrower is a single member limited liability company, Borrower or such SPC Party shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower or such SPC Party, shall immediately become the sole member of Borrower or such SPC Party, and the other of which shall become the sole member of Borrower or such SPC Party if the first such springing member no longer is available to serve as such sole member.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed members of the board of directors of each SPC Party and the Borrower who are provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and which are reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than as an Independent Director), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a “special purpose entity” affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower shall not be disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) Borrower shall not cause or permit the board of directors of any SPC Party and Borrower to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a unanimous vote of the board of directors of each SPC Party and Borrower unless at the time of such action there shall be at least two members who are each an Independent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(s) Borrower will not permit any Affiliate or constituent party independent access to its bank accounts other than a Manager approved by Lender, and then in such circumstances, only in accordance with the terms of its respective Management Agreement.
(t) Borrower shall pay the salaries of its own employees (if any) from its own funds and maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred.
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Single Purpose. Each Borrower hereby represents and warrants toto Lender, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full, such Borrower:
(ai) Borrower has not owned, does not own and will not own any asset or property other than (iA) its ownership interest in the Propertyits respective Mortgage Borrower, and (iiB) incidental personal property necessary for the ownership or operation of the Property.with respect thereto;
(bii) Borrower has not engaged, does not engage and will not engage in any business other than the ownership, management and operation ownership of the Property Collateral and Borrower will conduct and operate its business as presently proposed to be conducted and operated.;
(ciii) Borrower has not and will not enter into any contract or agreement agreement, with any Affiliate of Borrowerany Borrower Party, any constituent party of any Borrower Party or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.;
(div) 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 (iA) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iiiB) Indebtedness liabilities incurred in the financing ordinary course of equipment and other personal property used on the Property; provided business relating to that any Indebtedness incurred pursuant Collateral in amounts not to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars (exceed $4,000,000.00) 10,000.00 in the aggregate, (y) paid aggregate which liabilities are not more than sixty (60) days from past the date incurred incurred, are not evidenced by a note and are paid when due; and no Indebtedness other than the Debt may be secured subordinate, pari passu or otherwise) by the Collateral;
(v) has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates;
(vi) is and intends to remain solvent and has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due;
(vii) has done or caused to be done and will do all things necessary to observe organizational formalities and preserve its existence, and will not and will not permit any constituent 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 the applicable Borrower without the prior written consent of Lender;
(1) has maintained and will maintain all of its books, records, financial statements and bank accounts as official records, separate from those of its Affiliates and any constituent party, (2) will not permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that a Mortgage Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Mortgage Borrower and such Affiliates and to indicate that such Mortgage 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 such Mortgage Borrower’s own separate balance sheet; and (3) has maintained and will maintain its own books, records, financial statements and bank accounts separate from any other Person.
(ix) has filed and will file its own tax returns (to the matters in subclause extent that it is required to file any such tax returns) and will not file a consolidated federal income tax return with any other Person, unless permitted to do so under the Code;
(iix) above has been, will be, and not more than sixty (60) days from the date due as at all times will hold itself out to the matters public as, a legal entity separate and distinct from any other entity (including any of Affiliate of Borrower or any constituent party of any Borrower), shall correct any known misunderstanding regarding its status as a separate entity, has conducted and shall conduct business in subclause its own name, has not identified and shall not identify itself or any of its Affiliates as a division or part of the other, and has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name;
(iiixi) above has maintained and intends to 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;
(xii) will not seek or effect nor permit any of its constituent parties to seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of it;
(xiii) except with respect to another Borrower as contemplated by the Loan Documents, has not commingled and will not commingle its funds and other assets with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets in its own name;
(xiv) except with respect to another Borrower as contemplated by the Loan Documents, has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person;
(xv) except, with respect to another Mortgage Borrower as contemplated by the Loan Documents, has not guaranteed or become obligated for and will not guarantee or become obligated for the debts of any other Person and has not, does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person;
(xvi) will not permit any Affiliate or constituent party of any Borrower independent access to its bank accounts;
(xvii) except in the case of a Mortgage Borrower only, with respect to another Mortgage Borrower as contemplated by the TIC Agreement, has paid and will pay the salaries of its own employees (if any) from its own funds and will maintain a sufficient number of employees in light of its contemplated business operations; and
(xviii) has compensated and will compensate each of its consultants and agents from its funds for services provided to it and has paid and will pay from its own assets all obligations of any kind incurred.
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower does has not own owned and will not own any asset or property other than (i) its interest in the Property, Property and (ii) incidental personal property necessary for the ownership or operation of the Property; provided, however, Borrower previously owned the Other Property. Borrower hereby warrants and represents that (1) ownership of the Other Property has been transferred to another entity and Borrower has no direct or indirect ownership interest in the Other Property and (2) except as otherwise set forth herein, Borrower has no contingent liabilities in connection with the Other Property.
(b) Borrower has not and will not engage in any business other than the ownership, management and operation of the Property (other than the prior ownership of the Other Property) and Borrower has and will conduct and operate its business as presently conducted and operated.
(c) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (iA) the Debt, (iiB) unsecured that certain loan made on November 2, 2004, in the original principal amount of $6,000,000.00 made by Bank of Scotland to Borrower secured by the Property and the Other Property (the “Building Loan”), (C) the District Loan, (D) the Reimbursement Obligation (the Building Loan, the Bond Financing and the Reimbursement Obligation, collectively as, the “Prior Loan”), (D) trade payables and operational debt indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note note, (3) on commercially reasonable terms and conditions, and (iii4) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid due not more than sixty (60) days from past the date incurred as and paid on or prior to such date, and/or (E) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (D) and (E) shall not exceed at any time three percent (3%) of the outstanding principal amount of the Debt. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property. With respect to the matters Prior Loan, Borrower hereby represents, warrants and covenants that (1) the Prior Loan has been satisfied in subclause full, and (2) neither Borrower nor Guarantor have any remaining liabilities or obligations in connection with the Prior Loan, other than (x) environmental and other limited and customary indemnity obligations.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.
(f) Borrower is and will remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so.
(g) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent 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 or such constituent party without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 3.1.24, or (ii) above amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not more than sixty and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (60i) days appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) and has not and will not file a consolidated federal income tax return with any other Person (it being understood and agreed that the inclusion of the Borrower’s taxable income and tax liabilities in its parent’s tax return, as a result of the Borrower being treated as a disregarded entity for tax purposes, shall not be deemed to be a prohibited consolidated federal income tax return under this subsection). Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(i) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has and 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 (provided that there exists sufficient cash flow from the date due as Property to do so).
(k) Neither Borrower nor any constituent party has or will seek or effect the dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(l) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(o) If Borrower is a limited partnership or a limited liability company (other than an Acceptable Delaware LLC), each general partner or managing member (each, an “SPC Party”) shall be a corporation (I) whose sole asset is its interest in Borrower, (II) which has not been and shall not be permitted to engage in any business or activity other than owning an interest in Borrower; (III) which has not been and shall not be permitted to incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation); and (IV) which has and will at all times own at least a 0.5% direct equity ownership interest in Borrower. Each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 (to the matters extent applicable) as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a New Non-Consolidation Opinion to Lender with respect to the new SPC Party and its equity owners.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed members of the board of directors or managers of SPC Party or Borrower (to the extent Borrower is a corporation or an Acceptable Delaware LLC) who are provided by a nationally-recognized company that provides professional independent directors (each, an “Independent Director”) reasonably satisfactory to Lender who shall not have been at the time of each such individual’s appointment or at any time while serving as a director or manager of such SPC Party or Borrower (as applicable) and may not have been at any time during the preceding five years (i) a stockholder, director or manager (other than, in subclause each case, as an Independent Director), officer, employee, partner, member, attorney or counsel of such SPC Party (if any), Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party (if any), Borrower or any Affiliate of either of them, (iii) above anda Person or other entity Controlling or under common Control with any such stockholder, director, manager, officer, employee, partner, member, attorney or counsel, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, manager, officer, employee, partner, member, attorney or counsel, customer, supplier or other Person.
(q) Borrower shall not (I) cause or permit the board of directors or managers of any SPC Party or Borrower (as applicable) to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party (as applicable), requires a vote of the board of directors or managers of Borrower or SPC Party (as applicable) unless at the time of such action there shall be at least two (2) members who are each Independent Directors and (II) without the unanimous written consent of all of its partners or members, as applicable, and the written consent of 100% of the directors or managers of Borrower or each SPC Party (as applicable), including, without limitation, each Independent Director, (1) file or consent to the filling of any petition, either voluntary or involuntary, to take advantage of any state or federal; bankruptcy or insolvency laws, (2) seek or consent to the appointment of a receiver, liquidator or any similar official, (3) take any action that might cause such entity to become insolvent, or (4) make an assignment for the benefit of creditors.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(s) Borrower has not permitted and will not permit any Affiliate or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower will not permit any of its constituent owners or Affiliates to guaranty or otherwise become obligated in connection with any Indebtedness or other liabilities incurred by Borrower (other than in connection with the guaranties entered into in connection with the closing of the Loan).
(w) Borrower will cause accurate records to be kept of all transactions between Borrower and any constituent owner or Affiliate of Borrower.
Appears in 1 contract
Single Purpose. (a) Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower does has not own owned and will not own any asset or property other than (iA) its interest in the Property, (B) the Prior Property, and (iiC) incidental personal property necessary for the ownership ownership, leasing or operation of the Property and the Prior Property.
(bii) Borrower has not and will not engage in any business other than the ownership, management leasing, management, operation and operation financing of the Property and the Prior Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(div) Borrower has not incurred and will not incur any Indebtedness Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (iA) the DebtDebt and the Prior Loan, (iiB) unsecured trade payables and operational debt indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note note, (3) on commercially reasonable terms and conditions, and (iii4) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid due not more than sixty (60) days from past the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time two percent (2%) of the outstanding principal amount of the Debt.
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and will remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the matters partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower or any SPC Party without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in subclause a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) above such assets shall be listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) and has not and will not file a consolidated federal income tax return with any other Person (except as required or permitted by applicable Legal Requirements). Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and 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 (provided that there exists sufficient cash flow from the Property to do so).
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and shall pay from its own funds its own liabilities and expenses, including any required Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(xviii) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Director (regardless of whether such Independent Director is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors.
(b) Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property, (B) its leasehold interest in the Prior Property, and (c) personal property necessary for the operation of the Property and the Prior Property.
(ii) Operating Lessee has not and will not engage in any business other than the management and operation of the Property and the Prior Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Prior Loan, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C) shall not exceed at any time two percent (2%) of the outstanding principal amount of the Debt.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the date due Property to do so.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee or any SPC Party (if any) without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the matters extent Operating Lessee is required to file any such tax returns) and has not and will not file a consolidated federal income tax return with any other Person (except as required or permitted by applicable Legal Requirements). Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in subclause its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and 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 (provided that there exists sufficient cash flow from the Property to do so).
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) above andall the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and shall pay from its own funds its own liabilities and expenses, including any required Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(xviii) Operating Lessee has compensated and shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Director (regardless of whether such Independent Director is engaged at the Operating Lessee or SPC Party level), Operating Lessee has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors.
(c) Each of Borrower and Operating Lessee hereby represents and warrants that each of Borrower and Operating Lessee (i) is and has always been duly formed, validly existing and in good standing in the state of its incorporation and in all other jurisdictions where it is qualified to do business; (ii) has not had and does not have any judgments or liens of any nature against it except for Permitted Encumbrances; (iii) has been and is in compliance, in all material respects, with all Legal Requirements and has received all material permits necessary for it to operate its contemplated business; (iv) is not the subject of,
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or property other than (i) its interest in the Property, and (ii) incidental personal property necessary for the ownership or operation ownership, operation, leasing, management and/or maintenance of the Property.
(b) Borrower will not engage in any business other than the ownership, management financing, management, operation, leasing, maintenance and operation sale of the Property and Borrower will conduct other activities incidental thereto (in each case in accordance with the terms and operate its business as presently conducted provisions of this Agreement and operatedthe other Loan Documents).
(c) Borrower will not enter into any contract or agreement (other than the Exchange Documents) with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, 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 other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that (A) any Indebtedness incurred pursuant to subclause (ii) shall be (x) not more than sixty (60) days past the date incurred and (y) incurred in the ordinary course of business, and (B) any Indebtedness incurred pursuant to subclauses (ii) and (iii) in an aggregate amount not to exceed, at any one time, three percent (3%) of the original principal balance of the Loan. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and shall be (x) not in excess acquire obligations or securities of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above andits Affiliates.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower does has not own owned and will not own any asset or property other than (iA) its interest in the PropertyProperty and the TIF Loan, and (iiB) incidental personal property necessary for the ownership or operation of the Property.
(bii) Borrower has not and will not engage in any business other than the ownership, management leasing, management, operation and operation financing of the Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(div) Borrower has not incurred and will not incur any Indebtedness Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (iA) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (iiB) unsecured trade payables and operational debt indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note note, (3) on commercially reasonable terms and conditions, and (iii4) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (y) paid due not more than sixty (60) days from past the date incurred as and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the matters Individual Properties securing the Loan at such time.
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in subclause each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate 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 without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) above such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and 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 (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower.
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the date due Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the matters extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in subclause its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and 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 (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) above all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
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Single Purpose. Each Borrower and Operating Lessee hereby represents and warrants to, and covenants with, Lender that that, as of the date hereof hereof, at all times prior hereto and until such time as the Debt shall be paid in fullfull or its property is no longer subject to the Lien securing the Debt:
(ai) Borrower does It has not own owned and will not own any asset property or property any other assets other than (iA) its interest in with respect to the PropertyBorrower, the Properties currently owned by it, and (iiB) with respect to the Borrower and the Operating Lessee incidental personal and intangible property necessary for relating to the ownership ownership, leasing or operation of the Property.Properties;
(bii) Borrower It was formed solely for the purpose of engaging in, and has not engaged and will not engage in in, any business other than the ownership, management leasing, management, financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Properties;
(ciii) Borrower It has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates (other than the Loan Documents and Operating Leases), any of its constituent party of Borrower parties or any Affiliate of any constituent party, except contracts or agreements that are upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.parties;
(div) Borrower has not incurred and It will not incur any Indebtedness indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the Permitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (isubordinate or pari passu) by any Property and no indebtedness other than the Debt and the indebtedness described in clauses (iii) and (vi) of the definition of Permitted Indebtedness may be secured (subordinate or pari passu) by any personal property;
(v) Other than as provided in the Loan Documents, it will not make any loans or advances to, and it will not pledge its assets for the benefit of, any other Person (including any Affiliate or constituent party or any Affiliate of any constituent party), and shall not acquire obligations or securities of any Affiliate or constituent party or any Affiliate of any constituent party;
(vi) It is and will remain solvent and it will pay its debts and liabilities (including employment and overhead expenses) from its assets as the same shall become due;
(vii) It has done or caused to be done and will do all things necessary to observe limited liability company formalities (in all material respects), as the case may be, and preserve its existence, and it will not, to the extent possible under applicable law, nor will it permit or suffer any constituent party to amend, modify or otherwise change its partnership certificate, partnership agreement, certificate of formation (except as required by law), limited liability company agreement, articles of incorporation and bylaws, trust or other organizational documents or those of such constituent party in a manner which would adversely affect its existence as a Single Purpose Entity;
(viii) It has and will maintain books and records, financial statements and accounts separate and apart from those of any other Person and it will file its own tax returns (except to the extent consolidation is required under GAAP, permitted for tax purposes or as a matter of law, provided that any consolidated financial statements contain a note indicating that it and its Affiliates are separate legal entities and maintain records, books of account and accounts separate and apart from any other Person);
(ix) It has and will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliates, any of its constituent parties or any Affiliate of any constituent party), has and shall conduct business in its own name, has and shall exercise reasonable efforts to correct any known misunderstanding actually known to it regarding its separate identity, and has and shall maintain and utilize separate stationery, invoices and checks and it will reasonably allocate any overhead that is shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any officer or employee of an Affiliate;
(x) It has and 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;
(xi) To the fullest extent permitted by law, neither it nor any constituent party has nor will seek any Borrower’s or Operating Lessee’s dissolution or winding up, in whole or in part;
(xii) It does not and will not commingle its funds and other assets with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person except that each Borrower and Operating Lessee may commingle its funds with the funds of the other Borrower and Operating Lessee in the Deposit Account, in the Holding Account, in the Tax and Insurance Escrow Account and in each of the other Reserve Accounts;
(xiii) It has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person;
(xiv) Except in its capacity as a co-obligor under the Notes together with the other Borrowers, it does not and will not hold itself or its credit out to be responsible for or available to satisfy, and it has not guaranteed or otherwise become liable for, and has not and will not guarantee or otherwise become liable for, the debts, securities or obligations of any other Person;
(xv) If it is a limited liability company, either (a) at least one of its members is and shall be a Single Purpose Entity (the “SPE Member”) whose sole assets are its interest in the applicable Borrower or Operating Lessee and that has no less than a one percent (1%) membership interest in the applicable Borrower or Operating Lessee, and such Borrower or Operating Lessee shall be deemed hereby to have made each of the representations, warranties and covenants contained in this Section 4.1(bb) with respect to the SPE Member, and the SPE Member shall have two (2) Independent Directors as duly appointed members of its board of directors or (b) it shall have two (2) Independent Directors on its board of managers or board of directors (as applicable);
(xvi) It has and shall, at all times, have a limited liability company agreement which provides that, for so long as the Loan is outstanding and the Borrower’s Property remains subject to the Lien securing the Debt, its board of directors (iior (a) unsecured trade payables if such Borrower or Operating Lessee is a limited liability company with a managing member SPE Member, the board of directors of the SPE Member or (b) if such Borrower or Operating Lessee is a board managed limited liability company with two (2) Independent Directors on its board of directors) will not be permitted to take any action which, under applicable law or the terms of any certificate of incorporation or certificate of formation, limited liability company agreement, by-laws or any voting trust agreement with respect to any common stock, requires the vote of its board of directors or board of managers, unless at the time of such action there shall be at least two members of such board who are Independent Directors; provided, however, that, subject to any applicable Legal Requirement, its board of directors (or if such Borrower or Operating Lessee is a limited liability company and operational debt is not evidenced self managed, the board of directors of its SPE Member) may, at its discretion, be permitted to take any action without regard to the preceding clause of this sentence other than the following actions, which actions may not be taken: (A) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part; (B) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity unless the applicable Borrower is releasing that Property from the Lien of the Mortgage or paying off the Loan in accordance with the terms herein; (C) engage in any business other than the ownership, maintenance and operation of the Properties or, with respect to the SPE Member (if applicable), acting as a note and member of a Borrower or Operating Lessee; (iiiD) Indebtedness incurred institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of its SPE Member or any Borrower or Operating Lessee or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make or consent to an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; (E) except as required by law, amend its SPE Member’s certificate of incorporation (if applicable) or the limited liability company agreement of the applicable Borrower or Operating Lessee, but only to the extent such amendment impacts the Company’s status as a Single Purpose Entity; (F) enter into any transaction with an Affiliate not in the financing ordinary course of equipment the applicable Borrower’s or Operating Lessee’s business; or (G) withdraw the SPE Member, if applicable, or remove any Independent Director without simultaneously replacing with another Independent Director of a Borrower or Operating Lessee; provided, however, clause (D) above may be taken with the affirmative consent of the two (2) Independent Directors;
(xvii) It has no liabilities, contingent or otherwise, other than those normal and incidental to the ownership, operation and leasing of the Properties;
(xviii) Each Borrower and Operating Lessee shall conduct its business so that the assumptions made with respect to such Borrower or Operating Lessee in that certain opinion letter dated the date hereof delivered by P▇▇▇▇▇▇ Coie LLP addressing substantive non-consolidation and other personal property used on matters in connection with the Property; provided Loan shall at all times be true and correct in all respects;
(xix) No Borrower or Operating Lessee will permit any Affiliate or constituent party independent access to its bank accounts except that any Indebtedness incurred pursuant to subclauses (ii) each Borrower and (iii) shall be (x) not in excess Operating Lessee may commingle its funds with the funds of Four Million the other Borrowers and No/100 Dollars ($4,000,000.00) Operating Lessees in the aggregateDeposit Account, in the Holding Account, in the Tax and Insurance Escrow Account and in each of the other Reserve Accounts;
(yxx) paid not more than sixty Each Borrower and Operating Lessee has and shall pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(60xxi) days Each Borrower and Operating Lessee has and shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred. Upon the date incurred withdrawal or the disassociation of the Independent Director from any constituent entity of any Borrower or Operating Lessee (or from a Borrower or Operating Lessee directly), such Borrower or Operating Lessee shall immediately appoint a new director or special member or cause such entity to appoint a new director or special member that satisfies the requirements of an Independent Director under this Agreement; and
(xxii) Each Borrower and Operating Lessee is subject to and complies with all of the limitations on powers and separateness requirements set forth in its organizational documentation as to of the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above andClosing Date.
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