Single Purpose. ENTITY COVENANTS On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that: (i) Seller shall own no assets, and shall not engage in any business, other than with respect to the Purchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates (in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; (iv) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence; (vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other; (viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others; (x) Intentionally Omitted;
Appears in 1 contract
Sources: Master Repurchase Agreement
Single Purpose. ENTITY COVENANTS On (a) Borrower hereby represents and warrants to, and covenants that, once the date of Borrower’s formation and until the date hereof, Borrower has operated as a single purpose entity and has complied with all provisions of Borrower’s limited liability company operating agreement, including, without limitation, the special purpose provisions contained in Section 9(j) of such agreement.
(b) Borrower hereby represents and warrants, and covenants that, as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effectfull, Seller covenants that: Borrower, Mortgage Borrower and First Mezzanine Borrower:
(i) Seller shall do not own no assetsand will not own any asset or property other than operation of its property or its ownership interests in Mortgage Borrower or First Mezzanine Borrower or the Property, as applicable;
(ii) do not and shall will not engage in any business, business other than the ownership of the Collateral, the First Mezzanine Collateral or the Property, as applicable, and will conduct and operate its business as presently proposed to be conducted and operated, subject to expanded operations and management in connection with the Condominium Documents;
(iii) except for capital contributions and capital distributions permitted under the terms of this Agreement and properly reflected on the books of records of Borrower, First Mezzanine Borrower and/or Mortgage Borrower and, with respect to Mortgage Borrower, the Purchased Assets Heritage Intercompany Loan, the Development Fee, and the Deferred Development Fee, have not and will not enter into any contract or agreement with any Affiliate, any constituent 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 arm’s-length basis with third parties other than any such party;
(iv) have not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including Eligible Assets which Seller intends guaranteeing any obligation) other than (A) the Loan, with respect to sell Borrower, the First Mezzanine Loan, with respect to Purchaser subject First Mezzanine Borrower, and the Mortgage Loan, with respect to a Transaction hereunderMortgage Borrower, (B) with respect to Mortgage Borrower, the Heritage Intercompany Loan and (C) liabilities incurred in the ordinary course of Borrower’s business in amounts not to exceed in the aggregate $2,000,000.00, (when combined with liabilities of Mortgage Borrower and Second Mezzanine Borrower incurred in the ordinary course of their respective businesses), those Purchased Assets which have been repurchased from Purchaser liabilities are not more than sixty (60) days past the date incurred, are not evidenced by Seller (provided that such Purchased Assets a note and are transferred promptly to an entity paid when due; and no Indebtedness other than Seller after such repurchase)the Debt may be secured (subordinate, pari passu or otherwise) by the Collateral, the First Mezzanine Collateral or the Property, as applicable;
(v) have not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any third party (including any Affiliate or third party constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates;
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereundervi) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall are and will remain solvent and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own their respective assets as the same shall become due; ;
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall have done or have caused to be done and will do all things necessary to observe its organizational formalities and to preserve its each of their existence; , and will not, nor will permit any constituent party to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, certificate of formation, operating agreement or other organizational documents of such constituent party without the prior consent of Lender;
(viviii) Seller shall will maintain all of its books, records, financial statements and bank accounts as official records, separate from those of its Affiliates (except that such and any constituent party and will not permit its assets to be listed as assets on the financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter statement of Requirements of Lawany entity; provided, however, that Borrower’s, Mortgage Borrower’s and First Mezzanine Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (ia) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller the Borrower, Mortgage Borrower and/or First Mezzanine Borrower from such Affiliate and to indicate that SellerBorrower’s, Mortgage Borrower’s and/or First Mezzanine Borrower’s assets and credit credit, as applicable, are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (iib) such assets shall also be listed on Sellerthe Borrower’s, Mortgage Borrower’s and/or First Mezzanine Borrower’s own separate balance sheet;
(ix) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall will be, and at all times shall will hold itself themselves out to the public as, a legal entity entities separate and distinct from any other entity (including any AffiliateAffiliate or any constituent party), shall correct any known misunderstanding regarding its their status as a separate entityentities, shall conduct business in its their own name, and shall not identify itself themselves or any of its their Affiliates as a division or part of the other; other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing their own name;
(viiix) Seller shall will maintain adequate capital and a sufficient number of employees for the normal obligations reasonably foreseeable in a business of its their respective size and character and in light of its their respective contemplated business operations and shall remain solvent; providedoperations;
(xi) will not seek or effect nor permit any constituent party to seek or effect the liquidation, that the foregoing shall not require dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of any member, partner or shareholder of Seller to make any additional capital contributions to Seller; them;
(ixxii) Seller shall will not commingle its their respective funds or and other assets with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of their respective assets in its own name;
(xiii) has and will maintain its properties and their respective assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain its properties and identify their respective individual assets from those of othersany Affiliate or constituent party or any other Person;
(xiv) will not guarantee or become obligated for the debts of any other Person and does not and will not hold themselves out to be responsible for or have their respective credit available to satisfy the debts or obligations of any other Person;
(xv) will not permit any Affiliate or constituent party independent access to their respective bank accounts;
(xvi) if they respectively employ any employees of their own, will pay the salaries of any such employees from their own respective funds;
(xvii) will compensate each of their own consultants and agents from their funds for services provided to them and pay from their own assets all obligations of any kind incurred, including shared overhead expenses;
(xviii) will not pledge each of their assets to secure the obligations of any other Person;
(xix) will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity other than, with respect to Borrower, First Mezzanine Borrower or Mortgage Borrower;
(xx) will allocate fairly and reasonably any overhead expenses that are shared with any affiliate, including for shared office space and for services performed by any employee of an affiliate;
(xxi) will file their own respective tax returns, except to the extent Borrower, Mortgage Borrower or First Mezzanine Borrower is a “disregarded entity” for tax purposes;
(xxii) will cause the managers, agents and other representatives of the Borrower, First Mezzanine Borrower and/or Mortgage Borrower, as applicable to act at all times with respect to the First Mezzanine Borrower, Mortgage Borrower and/or Borrower, as applicable in furtherance of the foregoing and in the best interests of the Borrower, First Mezzanine Borrower and Mortgage Borrower; and
(xxxiii) Intentionally Omitted;will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(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 have at least two springing members, each of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower, shall immediately become a member of Borrower.
(d) Borrower shall at all times cause there to be at least one (1) duly appointed member of the board of directors or independent managers who is provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and professional independent managers (each, an “Independent Manager”) of Borrower or any such SPC Party 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 Borrower, 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, member, trustee, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either 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, (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 by blood or marriage of any such stockholder, director, officer, member, trustee, employee, partner, creditor, customer, supplier or other Person. 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.
(e) 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 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.
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement until such time as the Debt shall be paid in 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 any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Property, and shall not engage in any business, other than with respect to the Purchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller incidental personal property necessary for the ownership or operation of the Property and (iii) Permitted Investments, cash and cash equivalents.
(b) Borrower will not 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 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 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 third party constituent party), and shall not acquire obligations or securities of its Affiliates or owners or any other Person (in each caseexcept for securities that are Permitted Investments).
(f) Subject to there being sufficient revenues from the Property, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its all applicable organizational formalities and to 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 without the prior consent of Lender in any manner that (vii) Seller shall violates or is inconsistent with any of 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 (except that such and any other Person. Borrower’s assets will not be listed as assets on the financial statements statement of any other Person, provided, however, Borrower’s assets may be included in a consolidated to the extent consolidation is permitted or required under GAAP or as a matter financial statement of Requirements of Law; provided, any Affiliate provided that (i) appropriate notation shall be made inclusion on such consolidated financial statements statement is in accordance with the requirements of GAAP (or such other accounting method reasonably acceptable to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and Lender), (ii) such consolidated financial statement shall contain a footnote to the effect that Borrower’s assets shall also be are owned by Borrower and (iii) such assets are listed on SellerBorrower’s own separate balance sheet) and . Borrower will file its own tax returnsreturns 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 any) and agreements as official records.
(except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (viii) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or part of the other; other and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(viiij) Seller shall 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 and shall remain solvent; providedoperations.
(k) To the fullest extent permitted by law, that neither Borrower nor any constituent party will seek or effect the foregoing shall not require any memberliquidation, partner dissolution, winding up, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixl) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of its assets in its own name.
(m) Borrower has and will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party or any other Person.
(xn) Intentionally Omitted;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. ENTITY COVENANTS On (a) Borrower hereby represents with respect to Borrower, Mezzanine A Borrower and Mortgage Borrower that:
(i) each of Borrower, Mezzanine A Borrower and Mortgage Borrower is and always has 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) except for Permitted Encumbrances (as detailed on Schedule VII of the Mortgage Loan Agreement), Permitted Encumbrances (as defined in the Mezzanine A Loan Agreement), or Permitted Encumbrances (as defined in the Agreement), it has no judgments or liens of any nature against Mortgage Borrower, Mezzanine A Borrower or Borrower except for tax liens not yet due;
(iii) each of Borrower, Mezzanine A Borrower and Mortgage Borrower is in material compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, the Mezzanine A Loan Agreement or the Mortgage Loan Agreement, as applicable, has received all permits necessary for it to operate;
(iv) None of Borrower, Mezzanine A Borrower or Mortgage Borrower is involved in any dispute with any taxing authority;
(v) each of Borrower, Mezzanine A Borrower and Mortgage Borrower has paid all taxes which it owes;
(vi) Mortgage Borrower has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than the ownership and operation of the Property. Mezzanine A Borrower does not own and will not own any asset or property other than (i) the Mezzanine A Pledge Company Interests and (ii) incidental personal property necessary for the ownership of such interests. Borrower does not own and will not own any asset or property other than (i) the Pledged Company Interests and (ii) incidental personal property necessary for the ownership of such interests.;
(vii) each of Borrower, Mezzanine A Borrower, and Mortgage Borrower is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full;
(viii) each of Borrower, Mezzanine A Borrower, and Mortgage Borrower has provided Lender with complete financial statements that reflect a fair and accurate view of the entity’s financial condition;
(ix) Borrower has obtained a current Phase I environmental site assessment (“ESA”) for the Property prepared by EBI Consulting and to Borrower’s best knowledge, the ESA has not identified any recognized environmental conditions that require further investigation or remediation; and
(x) Mortgage Borrower has no material contingent or actual obligations not related to the Property. Mezzanine A Borrower has no material contingent or actual obligations not related to the Mezzanine A Collateral. Borrower has no material contingent or actual obligations not related to the Collateral.
(b) Borrower hereby represents and warrants to and covenants with Lender that as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the debt shall be paid in effect, Seller covenants that: full:
(i) Seller shall Mortgage Borrower does not own no assetsand will not own any asset or property other than (A) the Property, and shall (B) incidental personal property necessary for the ownership or operation of the Property. Mezzanine A Borrower does not own and will not own any asset or property other than (i) the Mezzanine A Pledge Company Interests and (ii) incidental personal property necessary for the ownership of such interests. Borrower does not own and will not own any asset or property other than (i) the Pledged Company Interests and (ii) incidental personal property necessary for the ownership of such interests.
(ii) Mortgage Borrower will not engage in any business, business other than the ownership, management and operation of the Property and Mortgage Borrower will conduct and operate its business as presently conducted and operated. Mezzanine A Borrower will not engage in any business other than the ownership of the related Mezzanine A Pledged Company Interests and will conduct and operate its business as presently conducted and operated. Borrower will not engage in any business other than the ownership of the related Pledged Company Interests and will conduct and operate its business as presently conducted and operated.
(iii) None of Borrower, Mezzanine A Borrower or Mortgage Borrower will enter into any contract or agreement with any Affiliate of Borrower, Mezzanine A Borrower or Mortgage Borrower, any constituent party of Borrower, Mezzanine A Borrower, Mortgage 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 arm’s-length basis with third parties other than any such party.
(iv) None of Borrower, Mortgage Borrower, or Mezzanine A Borrower will (and Borrower agrees it will not permit Mezzanine A Borrower or Mortgage Borrower to) incur, create or assume any Indebtedness other than (i) the Debt, (ii) in case of Mortgage Borrower, (A) the Mortgage Loan, (B) unsecured trade payables and operational of Mortgage Borrower debt not evidenced by a note and in an aggregate amount not exceeding $500,000 at any one time, and (C) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $100,000 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii)(B) and (ii)(C) shall be (x) with respect to the Purchased Assets subclause (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderii)(B), those Purchased Assets which have been repurchased from Purchaser by Seller paid within sixty (provided that such Purchased Assets are transferred promptly 60) days of the date incurred, and with respect to an entity subclause (ii)(C), paid when it is due and payable, and (y) incurred in the ordinary course of business. No Indebtedness other than Seller after such repurchase)the Mortgage Loan may be secured (subordinate or pari passu) by the Property, and other assets incidental to (iii) the originationMezzanine A Debt.
(v) None of Borrower, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall not Mezzanine A Borrower or Mortgage Borrower will make any loans or advances to any third party (including any Affiliate or third constituent party of Borrower, Mezzanine A Borrower or Mortgage Borrower), and shall not acquire any obligations or securities of its Affiliates (in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; (iv) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence; (vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other; (viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others; (x) Intentionally Omitted;Affiliates.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower and Operating Lessee hereby represent and warrant to, and covenant with, Agent and Lenders that, as of the date hereof and hereof, at all times while this Agreement prior hereto and until such time as the Debt shall be paid in full or any Transaction hereunder its property is in effect, Seller covenants that: no longer subject to the Lien securing the Debt:
(i) Seller shall It has not owned and will not own no assets, and shall not engage in any business, property or any other assets other than (A) with respect to Borrower, the Property and (B) with respect to the Purchased Assets Borrower and Operating Lessee incidental personal and intangible property relating to the ownership, leasing or operation of the Property;
(including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder)ii) It was formed solely for the purpose of engaging in, those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity and has not engaged and will not engage in, any business other than Seller after such repurchase)the ownership, and other assets incidental to the originationleasing, acquisition, ownershipmanagement, financing and disposition operation of the Purchased Assets; Property;
(iiiii) Seller shall It has not entered and will not enter into any contract or agreement with any of its Affiliates (other than the Loan Documents and Operating Lease), any of its constituent parties or any Affiliate of any constituent party, except contracts or agreements that are upon terms and conditions that are substantially similar to those that would be available on an arm’s-length basis with third parties;
(iv) It will not incur any 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 (subordinate or pari passu) by the Property and no indebtedness other than the Debt and the indebtedness described in clause (iii) 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 to, and it will not pledge its assets for the benefit of, any other Person (including any Affiliate or third constituent party or any Affiliate of any constituent party), and shall not acquire obligations or securities of its Affiliates any Affiliate or constituent party or any Affiliate of any constituent party;
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereundervi) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall It is and will remain solvent and it will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) only from its own assets as the same shall become due; ;
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall It has done or caused to be done and will do all things necessary to observe its organizational limited liability company formalities (in all material respects), as the case may be, and to 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 (viexcept 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) Seller shall It has and will maintain all of its books, books and records, financial statements and bank accounts separate and apart from those of any other Person and it will file its Affiliates own tax returns (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP GAAP, permitted for tax purposes or as a matter of Requirements of Law; providedlaw, provided that (i) appropriate notation shall be made on such any consolidated financial statements to indicate the separateness contain a note indicating that it and its Affiliates are separate legal entities and maintain records, books of Seller account and accounts separate and apart from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person Person);
(ix) It has and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall will be, and at all times shall has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliateof its Affiliates, any of its constituent parties or any Affiliate of any constituent party), shall correct any known misunderstanding regarding its status as a separate entity, 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 identify itself limited to, paying for shared office space and services performed by any officer or any employee of its Affiliates as a division of the other; an Affiliate;
(viiix) Seller shall 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 operations;
(xi) To the fullest extent permitted by law, neither it nor any constituent party has nor will seek Borrower’s or Operating Lessee’s dissolution or winding up, in whole or in part;
(xii) It does not and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall will not commingle its funds or and other assets with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person Person;
(xiii) It has and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain 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 Note, 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 Obligor or Operating Lessee, and Borrower or Operating Lessee shall be deemed hereby to have made each of the other representations, warranties and covenants contained in this Section 3.36 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 Property remains subject to the Lien securing the Debt, its board of directors (or (a) if 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 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 Borrower or Operating Lessee is a limited liability company and is not 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 from those of othersto any entity unless expressly permitted hereunder or unless Obligor is concurrently paying off the Loan in accordance with the terms herein; (xC) Intentionally Omittedengage in any business other than the ownership, maintenance and operation of the Property or, with respect to the SPE Member (if applicable), acting as a member of Borrower or Operating Lessee; (D) 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 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 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 ordinary course of 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 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 Property;
(xviii) Borrower and Operating Lessee shall conduct its business so that the assumptions made with respect to Borrower or Operating Lessee in that certain opinion letter dated the date hereof delivered by ▇▇▇▇▇▇▇ Coie LLP addressing substantive non-consolidation and other matters in connection with the Loan shall at all times be true and correct in all respects;
(xix) Neither Borrower or Operating Lessee will permit any Affiliate or constituent party independent access to its bank accounts;
(xx) Borrower and Operating Lessee have 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;
(xxi) Borrower and Operating Lessee have 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 withdrawal or the disassociation of the Independent Director from any constituent entity of any Obligor or Operating Lessee (or from a Obligor or Operating Lessee directly), such Obligor 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) Borrower and Operating Lessee are subject to and comply with all of the limitations on powers and separateness requirements set forth in its Organizational Documentation as of the Closing Date.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On (a) Borrower hereby represents and warrants to, and covenants that, once the date of Borrower’s formation and until the date hereof, Borrower has operated as a single purpose entity and has complied with all provisions of Borrower’s limited liability company operating agreement, including, without limitation, the special purpose provisions contained in Section 9(j) of such agreement.
(b) Borrower hereby represents and warrants, and covenants that, as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effectfull, Seller covenants that: Borrower, Mortgage Borrower and First Mezzanine Borrower:
(i) Seller shall do not own no assetsand will not own any asset or property other than operation of its property or its ownership interests in Mortgage Borrower or First Mezzanine Borrower or the Property, as applicable;
(ii) do not and shall will not engage in any business, business other than the ownership of the Collateral, the First Mezzanine Collateral or the Property, as applicable, and will conduct and operate its business as presently proposed to be conducted and operated, subject to expanded operations and management in connection with the Condominium Documents;
(iii) except for capital contributions and capital distributions permitted under the terms of this Agreement and properly reflected on the books of records of Borrower, First Mezzanine Borrower and/or Mortgage Borrower and, with respect to Mortgage Borrower, the Purchased Assets Heritage Intercompany Loan, the Development Fee, and the Deferred -49- Development Fee, have not and will not enter into any contract or agreement with any Affiliate, any constituent 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 arm’s-length basis with third parties other than any such party;
(iv) have not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including Eligible Assets which Seller intends guaranteeing any obligation) other than (A) the Loan, with respect to sell Borrower, the First Mezzanine Loan, with respect to Purchaser subject First Mezzanine Borrower, and the Mortgage Loan, with respect to a Transaction hereunderMortgage Borrower, (B) with respect to Mortgage Borrower, the Heritage Intercompany Loan and (C) liabilities incurred in the ordinary course of Borrower’s business in amounts not to exceed in the aggregate $2,000,000.00, (when combined with liabilities of Mortgage Borrower and Second Mezzanine Borrower incurred in the ordinary course of their respective businesses), those Purchased Assets which have been repurchased from Purchaser liabilities are not more than sixty (60) days past the date incurred, are not evidenced by Seller (provided that such Purchased Assets a note and are transferred promptly to an entity paid when due; and no Indebtedness other than Seller after such repurchase)the Debt may be secured (subordinate, pari passu or otherwise) by the Collateral, the First Mezzanine Collateral or the Property, as applicable;
(v) have not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any third party (including any Affiliate or third party constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates;
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereundervi) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall are and will remain solvent and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own their respective assets as the same shall become due; ;
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall have done or have caused to be done and will do all things necessary to observe its organizational formalities and to preserve its each of their existence; , and will not, nor will permit any constituent party to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, certificate of formation, operating agreement or other organizational documents of such constituent party without the prior consent of Lender;
(viviii) Seller shall will maintain all of its books, records, financial statements and bank accounts as official records, separate from those of its Affiliates (except that such and any constituent party and will not permit its assets to be listed as assets on the financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter statement of Requirements of Lawany entity; provided, however, that Borrower’s, Mortgage Borrower’s and First Mezzanine Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (ia) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller the Borrower, Mortgage Borrower and/or First Mezzanine Borrower from such Affiliate and to indicate that SellerBorrower’s, Mortgage Borrower’s and/or First Mezzanine Borrower’s assets and credit credit, as applicable, are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (iib) such assets shall also be listed on Sellerthe Borrower’s, Mortgage Borrower’s and/or First Mezzanine Borrower’s own separate balance sheet;
(ix) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall will be, and at all times shall will hold itself themselves out to the public as, a legal entity entities separate and distinct from any other entity (including any AffiliateAffiliate or any constituent party), shall correct any known misunderstanding regarding its their status as a separate entityentities, shall conduct business in its their own name, and shall not identify itself themselves or any of its their Affiliates as a division or part of the other; other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing their own name;
(viiix) Seller shall will maintain adequate capital and a sufficient number of employees for the normal obligations reasonably foreseeable in a business of its their respective size and character and in light of its their respective contemplated business operations and shall remain solvent; providedoperations;
(xi) will not seek or effect nor permit any constituent party to seek or effect the liquidation, that the foregoing shall not require dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of any member, partner or shareholder of Seller to make any additional capital contributions to Seller; them;
(ixxii) Seller shall will not commingle its their respective funds or and other assets with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of their respective assets in its own name;
(xiii) has and will maintain its properties and their respective assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain its properties and identify their respective individual assets from those of othersany Affiliate or constituent party or any other Person;
(xiv) will not guarantee or become obligated for the debts of any other Person and does not and will not hold themselves out to be responsible for or have their respective credit available to satisfy the debts or obligations of any other Person;
(xv) will not permit any Affiliate or constituent party independent access to their respective bank accounts;
(xvi) if they respectively employ any employees of their own, will pay the salaries of any such employees from their own respective funds;
(xvii) will compensate each of their own consultants and agents from their funds for services provided to them and pay from their own assets all obligations of any kind incurred, including shared overhead expenses;
(xviii) will not pledge each of their assets to secure the obligations of any other Person;
(xix) will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity other than, with respect to Borrower, First Mezzanine Borrower or Mortgage Borrower;
(xx) will allocate fairly and reasonably any overhead expenses that are shared with any affiliate, including for shared office space and for services performed by any employee of an affiliate;
(xxi) will file their own respective tax returns, except to the extent Borrower, Mortgage Borrower or First Mezzanine Borrower is a “disregarded entity” for tax purposes;
(xxii) will cause the managers, agents and other representatives of the Borrower, First Mezzanine Borrower and/or Mortgage Borrower, as applicable to act at all times with respect to the First Mezzanine Borrower, Mortgage Borrower and/or Borrower, as applicable in furtherance of the foregoing and in the best interests of the Borrower, First Mezzanine Borrower and Mortgage Borrower; and
(xxxiii) Intentionally Omitted;will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(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 have at least two springing members, each of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower, shall immediately become a member of Borrower.
(d) Borrower shall at all times cause there to be at least one (1) duly appointed member of the board of directors or independent managers who is provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and professional independent managers (each, an “Independent Manager”) of Borrower or any such SPC Party 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 Borrower, 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, member, trustee, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either 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, (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 by blood or marriage of any such stockholder, director, officer, member, trustee, employee, partner, creditor, customer, supplier or -52- other Person. 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.
(e) 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 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.
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Property, and shall (ii) incidental personal property necessary for the ownership or operation of the Property.
(b) Borrower will not engage in any business, business other than the ownership, development, repair, maintenance, 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 respect any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable and substantially similar to the Purchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to would be available on an entity arms-length basis with third parties other than Seller after any such repurchase)party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $500,000 at any one time and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $500,000 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall (x) not be outstanding more than thirty (30) days past the due date thereof and (y) be incurred in the ordinary course of business. 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 third party constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates.
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderf) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its organizational formalities applicable to Borrower and to 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 (vii) Seller shall 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 any other person or entity. 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 (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from Borrower and such Affiliate Affiliates and to indicate that Seller’s Borrower's assets and credit are not available to satisfy the debts and other obligations of such Affiliate Affiliates or any other Person and (ii) such assets shall also be listed on Seller’s Borrower's own separate balance sheet.
(i) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or part of the other; other and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(viiij) Seller shall 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 and shall remain solvent; providedoperations.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, that the foregoing shall not require any memberdissolution, partner winding up, liquidation, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixl) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or any other Person Person, and shall will hold all of its assets in its own name.
(m) Borrower has and will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party or any other Person.
(xn) Intentionally Omitted;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.
Appears in 1 contract
Sources: Loan Agreement (Corporate Property Associates 16 Global Inc)
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and -------------- covenants with, Lender that as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effect, Seller covenants that: full:
(i) Seller shall Borrower does not own no assetsand will not own any asset or property other than (A) the Properties, and shall (B) incidental personal property necessary for the ownership or operation of the Properties.
(ii) Borrower will not engage in any businessbusiness other than the ownership, management and operation of the Properties and Borrower will conduct and operate its business as presently conducted and operated.
(iii) 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 arm's-length basis with third parties other than any such party.
(iv) Borrower has not incurred and shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) the Debt; (B) unsecured trade payables and other unsecured indebtedness not evidenced by a note, equipment leases and endorsements of checks, incurred by Borrower for or in respect of the operation of the Properties in the ordinary course of operating its business; (C) unsecured indebtedness not evidenced by a note payable or reimbursable to a tenant under a Lease on account of work performed or costs incurred by such tenant in connection with its occupancy of space at an Individual Property pursuant to the Lease, including costs for tenant improvement work; and (D) indebtedness relating solely to the financing of construction of capital improvements, tenant improvements or building equipment or leasing costs payable to third parties or the Manager in accordance with the Property Management Agreement and incurred with respect to one or more of the Purchased Assets Individual Properties and costs associated with such indebtedness, either unsecured or secured only by subordinate liens and (including Eligible Assets i) which Seller intends in the aggregate does not exceed an amount equal to sell five percent (5%) of the outstanding principal amount of the Loan at any time, (ii) the proceeds of which are not distributed to Purchaser Borrower or any direct beneficial owner of an interest in Borrower, but are instead used to fund directly the costs of items described above, other than commissions and fees paid to Manager in accordance with the Management Agreement, (iii) which is evidenced by a note or other written agreement having terms (other than the interest rate and repayment terms) no less favorable to Borrower than the terms of the Loan, (iv) the terms of which shall require that the principal amount of such indebtedness be repaid from Net Operating Income prior to any distributions to any direct beneficial owner of an interest in Borrower (other than for income, franchise, or other taxes imposed on Borrower for the privilege of doing business in the jurisdictions in which the Property is located) and (v) is subject to a Transaction hereunder)subordination and standstill agreement satisfactory in form and substance to Lender. Except as set forth in the immediately preceding sentence, those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity no indebtedness other than Seller after such repurchase), the Debt may be secured (subordinate or pari passu) by the Properties. ---- -----
(v) Borrower has not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any Affiliate or third party (including any affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates.
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereundervi) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel employment and overhead expenses) only from its own assets as the same shall become due; , subject to Borrower's right to contest Taxes and Other Charges in accordance with Section ------- 5.1(b) and Labor and Material Costs in accordance with Section 3.6(b) of the ------ Mortgage.
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its organizational partnership formalities and to 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, trust or other organizational documents of Borrower or such constituent party without the prior written consent of Lender.
(viviii) Seller shall Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate affiliates and to indicate that Seller’s assets any constituent party and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and Borrower will file its own tax returns. Borrower shall maintain its books, if any records, resolutions and agreements as official records.
(except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (viiix) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or unit of the otherother and shall maintain and utilize separate stationery, invoices and checks; provided, however that Borrower may use the word "▇▇▇▇▇▇▇▇" as a part of Borrower's name, may describe itself as a "wholly-owned subsidiary" of ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P. so long as such description is true and correct and may permit its relationship with its Affiliates to be disclosed in order to comply with any public filing requirements applicable to ▇▇▇▇▇▇▇▇ Properties Trust.
(viiix) Seller shall Borrower is adequately capitalized 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 and shall remain solvent; providedoperations.
(xi) Neither Borrower nor any constituent party will seek or effect the liquidation, that the foregoing shall not require any memberdissolution, partner winding up, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixxii) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person Person. For purposes of this clause (xii), funds distributed to partners of Borrower as permitted under this Agreement shall no longer constitute funds of Borrower.
(xiii) Borrower has and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party or any other Person.
(xxiv) Intentionally Omitted;Borrower does not and will not hold itself out to be responsible for the debts or obligations of any other Person.
(xv) If Borrower is a limited partnership, the general partner is a corporation whose sole asset is its interest in Borrower and the general partner will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section ------- 4.1(ee) as if such representation, warranty or covenant was made directly by ------- such general partner.
(xvi) Borrower shall at all times cause there to be at least one (1) duly appointed member of the board of directors (an "INDEPENDENT DIRECTOR") -------------------- of the general -52-
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, the Administrative Agent and each Lender that as of the date hereof Closing Date and at all times while this Agreement until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full:
(a) Borrower has not owned, does not owns and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assets, the Pledged Assets and shall other Collateral and (ii) incidental personal property necessary for the ownership of the Pledged Assets and other Collateral.
(b) Borrower has not engaged or will not engage in any business, business other than the ownership and management of the Pledged Assets and other Collateral, and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has had, now has, and will have as its only general partner, a special purpose limited liability company that is in compliance with respect the requirements for a “single purpose entity” that are set forth in Schedule D to the Purchased limited liability company agreement of Ashford Finance Subsidiary II General Partner LLC as in effect on the date hereof.
(d) 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 in connection with the acquisition of Pledged Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder)or in the ordinary course of business on arm’s-length terms and conditions. Nothing contained in this Section 5.30 or any other provision of the Loan Documents shall restrict or prevent, those Purchased Assets which have been repurchased upon the release of any Pledged Asset from Purchaser by Seller (provided that the Liens created under the Loan Documents in compliance with this Agreement and the other Loan Documents, Borrower’s transfer or conveyance of such Purchased Assets are transferred promptly released Pledged Asset to an entity Affiliate of Borrower.
(e) Borrower has not incurred and will not incur any Indebtedness other than Seller after such repurchase)the Loans contemplated hereby.
(f) Except for the Pledged Assets, Borrower has not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any third party (including any Affiliate or third constituent party of Borrower), and has not and shall not acquire obligations or securities of its Affiliates Affiliates.
(in each caseg) Borrower has had, now has, and will have a limited partnership agreement that provides that Borrower will not, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than advances under the Purchased Assets surviving contingent obligations for which no demand for payment has been made) shall have been paid in full: (A) dissolve, merge, liquidate or Eligible Assets which Seller intends to consolidate; (B) sell to Purchaser subject to a Transaction hereunder) to Mortgagors all or Mezzanine Borrowers or otherwise in connection therewithsubstantially all of its assets (as applicable); (iiiC) Seller shall engage in any other business activity or amend its organizational documents with respect to the matters set forth in this section; or (D) without the affirmative vote of the independent member of the general partner of Borrower, take any Bankruptcy Action with respect to itself or any other entity in which it has a direct or indirect legal or beneficial ownership interest.
(h) Borrower is solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivi) Seller shall 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: (i) terminate or fail to comply with the provisions of its organizational documents in all material respects; (v) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence; (vi) Seller shall maintain all of its booksdocuments, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except unless the Administrative Agent has consented to the extent 54 consolidation is required same in writing, amend, modify or permitted under Requirements of Lawotherwise change in any material respect its Governing Documents, such as in including, without limitation, the case of a disregarded entity); single purpose, separateness or bankruptcy remote provisions or requirements thereof.
(viij) Seller shall Borrower has maintained and will maintain its accounts, books and records separate from any other Person.
(k) Borrower has been, will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Borrower or any constituent party of Borrower), shall correct any known misunderstanding regarding its status as a separate entity, and has conducted and shall conduct business in its own name, and . The requirements of this Section 5.30 shall not identify itself prevent Borrower from being treated as an entity which is “disregarded” from Ashford OP for income or any of its Affiliates as a division of the other; other tax purposes.
(viiil) Seller shall 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 operations.
(m) Neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation, merger or sale of all or substantially all of its assets, in whole or in part, of Borrower.
(n) Borrower has held and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder will hold all of Seller to make any additional capital contributions to Seller; its assets in its own name.
(ixo) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person Borrower has maintained and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party of Borrower or any other Person.
(xp) Intentionally Omitted;Other than as required or permitted herein, Borrower has not assumed or guaranteed and will not assume or guarantee or become obligated for the debts of any other Person, and Borrower 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.
(q) Borrower will not without the written consent of its general partner and the unanimous written consent of all of the managers of its general partner take any Bankruptcy Action.
(r) The Governing Documents of the general partner of Borrower (“Borrower GP”) shall provide that, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full, upon the occurrence of any event that causes the sole member of Borrower GP to cease to be a member of Borrower GP (other than (i) upon an assignment by the sole member of Borrower GP of all of its limited liability company interest in Borrower GP and the admission of the transferee, if permitted pursuant to the Governing Documents of Borrower GP and the Loan Documents, or (ii) the resignation of the sole member of Borrower GP and the admission of an additional member of Borrower GP, if permitted pursuant to the Governing Documents of Borrower GP and the Loan Documents), a Person designated as a special member of Borrower GP shall, without any action of any Person and simultaneously with the sole member ceasing to be a member of Borrower GP, automatically be admitted as the sole member of Borrower GP (the “Special Member”) and shall preserve and continue the existence of Borrower GP without dissolution. The organizational documents of Borrower GP shall further provide that for so long as any portion of the Revolving Credit Commitments and/or the Secured Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless a successor Special Member has been admitted to Borrower GP as a Special Member.
(s) The Governing Documents of Borrower GP shall provide that, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full, except as expressly permitted pursuant to the terms of this Agreement, (i) the sole member of Borrower GP may not resign, and (ii) no additional member shall be admitted to Borrower GP.
(t) Borrower has compensated and shall compensate each of its consultants, agents and employees (if any) from its funds for services provided to it and pay from its own assets all obligations of any kind incurred.
(u) Borrower has maintained and will maintain relationships with its Affiliates in compliance with Section 8.7 hereof.
(v) Except in connection with the Loans, Borrower has not pledged and will not pledge its assets for the benefit of any other Person.
(w) Borrower will consider the interests of Borrower’s creditors in connection with all limited partnership actions.
Appears in 1 contract
Sources: Revolving Credit Loan and Security Agreement (Ashford Hospitality Trust Inc)
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that, as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effect, Seller covenants that: full:
(i) Seller shall Borrower does not and will not own no assets, any asset or property other than (A) the Property Loan and shall (B) incidental personal property necessary for the ownership or operation of the Property Loan.
(ii) Borrower will not engage in any businessbusiness other than the ownership of the Property Loan and will in all material respects conduct and operate its business as presently conducted and operated.
(iii) Borrower will not enter into any contract or agreement with any of its Affiliates or constituent parties, Guarantor or any Affiliate of any constituent party or Guarantor, 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) Borrower has not incurred, and Borrower will not incur, any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than with respect to the Purchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder)Permitted Indebtedness. Except as set forth in the immediately preceding sentence, those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity no indebtedness other than Seller after such repurchase), the Debt may be secured (subordinate or pari passu) by the Property Loan.
(v) Borrower has not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any third party (including any Affiliate or third constituent party, Guarantor or any Affiliate of any constituent party and shall not acquire obligations or securities of its Affiliates (in each caseGuarantor), other than except for advances under the Purchased Assets (or Eligible Assets which Seller intends approved by Lender to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise pay redevelopment costs in connection therewith); with the Property that are secured by the Property Loan Documents.
(iiivi) Seller shall Borrower is and will remain solvent and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) only from its own assets as the same shall become due; .
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and to preserve its existence; .
(viviii) Seller shall Borrower will not permit any constituent party or Guarantor to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust, operating agreement or other organizational documents of Borrower or such constituent party or Guarantor in a manner which would adversely affect Borrower's existence as a single purpose entity.
(ix) Borrower will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets any constituent party and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and Borrower will file its own tax returns, if any .
(except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (viix) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate, any constituent party, Guarantor or any Affiliate of any constituent party or Guarantor), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, name and shall not identify itself or any of its Affiliates as a division of the other; maintain and utilize separate stationery, invoices and checks.
(viiixi) Seller shall 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 and shall remain solvent; providedoperations.
(xii) Neither Borrower nor any constituent party will seek the dissolution or winding up, that the foregoing shall not require any memberin whole or in part, partner or shareholder of Seller to make any additional capital contributions to Seller; Borrower.
(ixxiii) Seller shall Borrower will not commingle its funds or and other assets with those of any Affiliate or constituent party, Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person person.
(xiv) Borrower has and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party, Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person.
(xxv) Intentionally Omitted;Borrower does not and will not hold itself out to be responsible for the debts or obligations of any other Person.
(xvi) Borrower shall at all times have one member (the "SPE Member") who is a "single purpose entity" and shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE Member.
(xvii) The charter of the SPE Member shall at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five (5) years (i) a member of, or an officer or employee of, Borrower or any of its shareholders, subsidiaries or Affiliates (except as an Independent Director on any of their boards of directors), (ii) a customer, or supplier, Borrower or any of its members, subsidiaries or Affiliates (except as an Independent Director on any of their boards of directors), (iii) a person or other entity controlling any such member, supplier or customer or (iv) a member of the immediate family of any such shareholder, officer, employee, supplier or customer of any other director of the SPE Member. As used herein, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Notwithstanding anything to the contrary contained herein or otherwise, Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effect, Seller covenants that: full:
(i) Seller shall Borrower has not owned, does not currently own no assets, and shall will not own any asset or property other than (A) the Property and (B) incidental personal property necessary for the ownership or operation of the Property.
(ii) Borrower has not engaged in and will not engage in any businessbusiness other than the ownership, development, management, leasing and operation of the Property.
(iii) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than with respect the Debt and unsecured trade debt incurred in the ordinary course of business relating to the Purchased Assets ownership of the Property, none of which is or shall be at any time more than thirty (including Eligible Assets which Seller intends 30) days past due (unless same is being contested in accordance with applicable Legal Requirements and the Loan Documents and Lender has been notified in writing of the same) and does not and shall not exceed in the aggregate at any time the Maximum Permitted Trade Payables. Except as permitted by Section 5.22(g), no constituent member, partner or shareholder of Borrower (direct or indirect, and no matter how remote) has incurred or will incur any Indebtedness secured (directly or indirectly) by such Person’s legal or beneficial ownership interest in Borrower or any constituent member, partner or shareholder of Borrower (direct or indirect, legal or beneficial, and no matter how remote). No Indebtedness other than the Debt may be secured (superior, subordinate or pari passu) by the Property or any portion thereof. Notwithstanding the foregoing, Borrower shall be permitted to sell to Purchaser incur, subject to a Transaction hereunder)the prior written consent of Lender not to be unreasonably withheld, those Purchased Assets which have been repurchased from Purchaser by Seller subordinate construction loan financing for the Property.
(provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), iv) Borrower has not made and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller shall will not make any loans or advances to any Person (including any Affiliate or third party constituent party), and has not acquired and shall not acquire obligations or securities of any Borrower Party or any Affiliate of Borrower or any Borrower Party.
(v) Borrower is and will remain solvent and Borrower has at all times during its Affiliates (in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends existence paid and will continue to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall pay its debts debts, liabilities and liabilities expenses (including, as applicable, shared personnel and overhead expenses) only from its own Borrower’s assets as the same shall become due; .
(ivvi) Seller shall Borrower has done or caused to be done and will do all things necessary to observe limited liability company and other organizational formalities and preserve Borrower’s existence and has at all times complied with and will continue to comply with the provisions of its organizational documents in Organizational Documents and the laws of the state of its organization and any other state where laws govern the activities of the Borrower.
(vii) Borrower has at all material respects; (v) Seller shall do all things necessary times during its existence maintained and will continue to observe its organizational formalities and to preserve its existence; (vi) Seller shall maintain all of its Borrower’s books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person Person, and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and Borrower will file its own tax returns. Borrower has at all times during its existence maintained and will continue to maintain Borrower’s books, if any records, resolutions and agreements as official records.
(except to the extent 54 consolidation viii) Borrower is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall and will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity Person (including any AffiliateAffiliate of Borrower or any constituent party of Borrower), has at all times conducted and will continue to conduct business in its own name, has at all times corrected and shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, has not identified and shall not identify itself or any of its Affiliates as a division or part of the other; any other Person and has maintained and shall continue to maintain and utilize separate stationery, invoices and checks bearing its own name.
(viiiix) Seller shall Borrower has maintained and will continue 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 operations.
(x) Neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xi) Borrower has not commingled and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall will not commingle its funds or and other assets with those of any Affiliate or other Person, and Borrower has not controlled and will not control the decisions with respect to the daily affairs of any other Person Person.
(xii) Borrower has maintained and shall will continue to maintain its properties and assets in such a manner that it would not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and assets from those of others; any Affiliate or constituent party of Borrower or any other Person.
(xxiii) Borrower has not held, does not currently hold and will not hold itself out to be responsible for the debts or obligations of any other Person.
(xiv) Borrower has at all times during its existence held, and will continue to hold, all of its assets in its own name.
(xv) Borrower has not at any time during its existence guaranteed or become obligated for, and will not in the future guarantee or become obligated for, the debts of any other Person.
(xvi) Except as specifically provided in the Loan Documents, no other Person has ever guaranteed or become obligated for Borrower’s debts at any time during Borrower’s existence, and except as specifically provided in the Loan Documents, Borrower will not permit any other Person to guarantee or become obligated for its debts at any time in the future.
(xvii) Borrower has not at any time during its existence held, and will not in the future hold, out Borrower’s credit as being available to satisfy the obligations of any other Person.
(xviii) No other Person has ever held, and Borrower will not permit any other Person to hold, out Borrower’s credit as being available to satisfy the obligations of any other Person.
(xix) Borrower has not at any time during its existence bought or held, or will in the future buy or hold, evidence of Indebtedness issued by any of its Affiliates or equity interest holders (direct or indirect, legal or beneficial).
(xx) Borrower has at all times during its existence allocated fairly and reasonably (and paid or charged for, as applicable), and will continue to allocate fairly and reasonably (and pay or charge for, as applicable), any overhead expenses that are shared with an Affiliate of Borrower, including paying for office space provided by and services performed by any employee of an Affiliate of Borrower.
(xxi) Except as provided in the Loan Documents, Borrower has not at any time during its existence pledged, or will in the future pledge, its assets for the benefit of any other Person.
(xxii) No other Person has ever pledged, and Borrower will not permit any other Person to pledge, Borrower’s assets for such other Person’s benefit.
(xxiii) No other Person has ever identified, and Borrower will not permit any other Person to identify, Borrower as a division of any other Person.
(xxiv) If Borrower is a limited liability company, at least one member of Borrower shall be a Single Purpose Entity (the “SPE Member”), and only the SPE Member may be designated as managing member. If Borrower is a limited liability company, Borrower shall at all times either be member managed or be managed by a Board of Directors or Board of Managers and shall have at least one (1) springing member that will become the member of Borrower upon the dissolution of the last remaining member of Borrower. The SPE Member of Borrower will at all times comply, and will cause Borrower to comply, with each of the representations, warranties and covenants contained in this Section 4.1.(s) as if such representation, warranty or covenant was made directly by the SPE Member. Upon the withdrawal, removal or disassociation of the SPE Member from Borrower, Borrower shall immediately cause the SPE Member to appoint a new member whose articles of incorporation or articles of organization are substantially similar to those of the SPE Member.
(xxv) Intentionally Omitted;.
(xxvi) Intentionally Omitted.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to Lender that as of the date hereof and at all times while this Agreement covenants with Lender that until such time as the Debt shall be paid in full (unless otherwise hereafter consented to by Lender after receiving a Rating Agency Confirmation):
(a) Borrower does not own and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Property, (ii) incidental personal property necessary for the ownership or operation of the Property, and shall (iii) the Permitted Investments, cash and cash equivalents.
(b) Borrower will not engage in any business, business other than the ownership, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated in all material respects.
(c) Borrower will not enter into any contract or agreement with respect 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 the Purchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to would be available on an entity arms-length basis with third parties other than Seller after any such repurchase)party.
(d) Borrower has no outstanding Indebtedness for borrowed money and will not incur any Indebtedness other than (i) the Debt, and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $2,500,000 at any one time and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property in an aggregate amount not exceeding $500,000 at any one time; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be not more than ninety (90) days past due and incurred in the ordinary course of business. No Indebtedness other than the Debt may be secured (subordinate or PARI PASSU) by the Property, except that any permitted equipment financing 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 third party (including any Affiliate or third party constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates.
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderf) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its organizational formalities and to 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 the SPC Party without the prior consent of Lender in any manner that (vii) Seller shall 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 or the Mezzanine 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 (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Lawand any constituent party; provided, however, that Borrower's assets may be included in a consolidated financial statement of its Affiliates if (i) appropriate notation shall be made inclusion on such a consolidated financial statement is required to comply with the requirements of GAAP, (ii) such consolidated financial statements shall contain a footnote to indicate the separateness of Seller from such Affiliate and to indicate effect that Seller’s Borrower's assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person owned by Borrower, and (iiiii) such assets shall also be listed on Seller’s Borrower's own separate balance sheet) and . Except as permitted under the preceding sentence, Borrower's assets will not be listed as assets on the financial statement of any other entity; provided, however, that such restriction shall not preclude any Person from listing its ownership interests in Borrower as an asset on its financial statement. Borrower will file its own tax returns, if returns and will not file a consolidated federal income tax return with any (except to the extent 54 consolidation other Person unless specifically mandated by applicable law or unless Borrower is required or permitted under Requirements of Law, such treated as in the case of a disregarded entity); . Borrower shall maintain its books, records, resolutions and agreements as official records.
(viii) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or part of the other; other and shall maintain and utilize a separate telephone number (viiiwhich may be a telephone number at the Property) Seller shall and separate stationery, invoices and checks bearing its own name.
(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 and shall remain solvent; providedoperations.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, that the foregoing shall not require any memberdissolution, partner winding up, liquidation, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixl) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of its assets in its own name.
(m) Borrower has and will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party or any other Person.
(xn) Intentionally Omitted;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.
(o) Each entity comprising Borrower is a Delaware limited liability company that (i) has Mezzanine Borrower as its only member and (ii) has a non-member manager that is a Delaware corporation (the "SPC PARTY"). The 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 the SPC Party, except that the SPC Party shall not be required to maintain a separate telephone number from that utilized by Borrower. Upon the withdrawal or the disassociation of the SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of the 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.
(p) Borrower shall at all times cause there to be at least two duly appointed members of the board of directors (each, an "INDEPENDENT DIRECTOR") of the SPC Party reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five years, (i) a stockholder, director, officer, employee, partner, attorney or counsel of such corporation, 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 corporation, Borrower 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 Person. 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.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and -------------- covenants with, Lender that as of the date hereof and at all times while this Agreement or any Transaction hereunder is until such time as the Debt shall be paid in effect, Seller covenants that: full:
(i) Seller shall Borrower and each Individual Borrower do not own no assetsand will not own any asset or property other than (A) the Properties, and shall (B) incidental personal property necessary for the ownership or operation of the Properties.
(ii) Borrower and each Individual Borrower will not engage in any businessbusiness other than the ownership, management and operation of the Properties and Borrower and each Individual Borrower will conduct and operate its business as presently conducted and operated.
(iii) Borrower and each Individual Borrower will not enter into any contract or agreement with any Affiliate of any Individual Borrower, any constituent party of any Individual 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 arm's-length basis with third parties other than any such party.
(iv) Borrower and each Individual Borrower have not incurred and shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) the Debt; (B) unsecured trade payables and other unsecured indebtedness not evidenced by a note, equipment leases and endorsements of checks, incurred by Borrower or one or more Individual Borrowers for or in respect of the operation of the Properties in the ordinary course of operating its business; (C) unsecured indebtedness not evidenced by a note payable or reimbursable to a tenant under a Lease on account of work performed or costs incurred by such tenant in connection with its occupancy of space at an Individual Property pursuant to the Lease, including costs for tenant improvement work; and (D) indebtedness relating solely to the financing of construction of capital improvements, tenant improvements or building equipment or leasing costs payable to third parties or any Manager in accordance with the Management Agreements and incurred with respect to one or more of the Purchased Assets Individual Properties and costs associated with such indebtedness, either unsecured or secured only by subordinate liens and (including Eligible Assets i) which Seller intends in the aggregate does not exceed an amount equal to sell five percent (5%) of the outstanding principal amount of the Loan at any time, (ii) the proceeds of which are not distributed to Purchaser any Individual Borrower or any direct beneficial owner of an interest in any Individual Borrower, but are instead used to fund directly the costs of items described above, other than commissions and fees paid to any Manager or Natomas Manager in accordance with the Management Agreements or the Natomas Management Agreement, (iii) which is evidenced by a note or other written agreement having terms (other than the interest rate and repayment terms) no less favorable to Borrower than the terms of the Loan, (iv) the terms of which shall require that the principal amount of such indebtedness be repaid from Net Operating Income prior to any distributions to any direct beneficial owner of an interest in any Individual Borrower (other than for income, franchise, or other taxes imposed on Borrower for the privilege of doing business in the jurisdictions in which the Property is located) and (v) is subject to a Transaction hereunder)subordination and standstill agreement satisfactory in form and substance to Lender. Except as set forth in the immediately preceding sentence, those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity no indebtedness other than Seller after such repurchase), and other assets incidental to the origination, acquisition, ownership, financing and disposition of Debt may be secured (subordinate or pari passu) ---- ----- by the Purchased Assets; Properties.
(iiv) Seller shall not No Individual Borrower has made or will make any loans or advances to any Affiliate or third party (including any affiliate or constituent party), and no Individual Borrower shall not acquire obligations or securities of its Affiliates Affiliates.
(in vi) Each Individual Borrower is and will remain solvent and each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Individual Borrower will pay its debts and liabilities (including, as applicable, shared personnel employment and overhead expenses) only from its own assets as the same shall become due; , subject to Borrower's right to contest Taxes and Other Charges in accordance with Section 5.1(b) and Labor and Material Costs in -------------- accordance with Section 3.6(b) of the -50-
(ivvii) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Each Individual Borrower has done or caused to be done and will do all things necessary to observe its organizational partnership formalities and to preserve its existence; , and each Individual Borrower will not, nor will any Individual Borrower permit any constituent party to, amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents of such Individual Borrower or such constituent party without the prior written consent of Lender.
(viviii) Seller Borrower will maintain books and records separate from those of its affiliates and any constituent party and each Individual Borrower will file its own tax returns. Each Individual Borrower shall maintain all of its books, records, financial statements resolutions and bank accounts separate from those of its Affiliates agreements as official records.
(except that such financial statements may ix) Each Individual Borrower will be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of any Individual Borrower or any constituent party of any Individual Borrower), shall correct any known misunderstanding regarding its status as a separate entity, entity and shall conduct business in its own name; provided, however that each Individual Borrower may use the word "▇▇▇▇▇▇▇▇" as a part of such Individual Borrower's name, may describe itself as a "wholly-owned subsidiary" of ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P. so long as such description is true and shall not identify itself or any of correct and may permit its relationship with its Affiliates as a division of the other; to be disclosed in order to comply with any public filing requirements applicable to ▇▇▇▇▇▇▇▇ Properties Trust.
(viiix) Seller shall Each Individual Borrower is adequately capitalized 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 and shall remain solvent; providedoperations.
(xi) No Individual Borrower or constituent party will seek or effect the liquidation, that the foregoing shall not require any memberdissolution, partner winding up, or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall not commingle its funds consolidation or other assets merger in connection with those an insolvency proceeding, in whole or in part, of any Affiliate or any other Person Individual Borrower.
(xii) Borrower has and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; any Affiliate or constituent party or any other Person.
(xxiii) Intentionally Omitted;Each Individual Borrower does not and will not hold itself out to be responsible for the debts or obligations of any other Person other than the debts or obligations of another Individual Borrower.
(xiv) If each Individual Borrower is a limited partnership, the general partner of each Individual Borrower is a corporation or limited liability company whose sole asset is its interest in one or more Individual Borrowers and the general partner will at times comply, and will cause the related Individual Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 4.1(ee) as if such --------------- representation, warranty or covenant was made directly by such general partner.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Property, and shall (ii) incidental personal property necessary for the ownership or operation of the Property.
(b) Borrower will not engage in any business, 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 respect 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; provided, however, that that certain Management Agreement dated as of the Purchased Assets date hereof between Borrower and Manager is hereby approved by Lender.
(d) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity guaranteeing any obligation) other than Seller after such repurchase)(i) the Debt, and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller unsecured trade payables not more than sixty (60) days past due incurred in the ordinary course of business in an aggregate amount not exceeding $1,000,000 exclusive of any amount that Borrower is disputing in good faith and (iii) Affiliate Loans, provided, however, notwithstanding the foregoing, that (x) all such Affiliate Loans shall at all times be Subordinate and Junior in Right of Payment and the Affiliate Creditor which makes such Affiliate Loan executes and delivers a subordination agreement to Lender in substantially the form attached as Exhibit D hereto (the "Subordination Agreement"), (y) outside counsel to the Affiliate Creditor which makes such Affiliate Loan executes and delivers to Lender an opinion letter satisfactory to Lender regarding the due authorization, execution, delivery and enforceability of such Subordination Agreement and (z) the sum of all amounts referenced in clauses (i), (ii) and (iii) above shall not exceed 75% of the Borrower's actual cash cost of acquiring the Property. 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 third party constituent party), and shall not acquire obligations or securities of its Affiliates any third party (in each case, other than advances under the Purchased Assets including any Affiliate or constituent party).
(or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderf) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions Each of its organizational documents in all material respects; (v) Seller shall Borrower and SPC Member has done or caused to be done and will do all things necessary to observe its limited liability company and other organizational formalities and to preserve its existence; , and Borrower and SPC Member will not, nor will Borrower or SPC Member 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, SPC Member or such constituent party without the prior written consent of Lender.
(vih) Seller shall Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets any constituent party and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and Borrower will file its own tax returns. Borrower shall maintain its books, if any records, resolutions and agreements as official records.
(except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (viii) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or part of the other; other and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks.
(viiij) Seller shall 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 and shall remain solvent; providedoperations.
(k) None of Borrower, that SPC Member or any constituent party will seek or effect the foregoing shall not require any memberliquidation, partner dissolution, winding up, liquidation, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixl) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of its assets in its own name.
(m) Borrower has and will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of othersany Affiliate or constituent party or any other Person.
(n) Borrower 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 shall have as its sole member a Delaware limited liability company (the "SPC Member") which is a single purpose entity whose sole asset is its interest in Borrower (which interest shall not be less than one-hundred percent (100%) of the ownership interest in Borrower). Borrower and SPC Member shall each have as an independent manager (each an "Independent Manager") a Delaware corporation which is a single purpose entity whose sole asset is its interest in the Borrower; each of such Independent Managers shall be different corporate entities. Each Independent Manager will at all times comply, and will cause Borrower and SPC Member 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 the Independent Managers and the SPC Member. As used in this subsection 3.1.24, the term "single purpose entity" shall mean an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve separateness that are substantially similar to those of Borrower and provide, inter alia, that it: (a) is organized for a limited purpose; (xb) Intentionally Omitted;has restrictions on its ability to incur indebtedness, dissolve, liquidate, consolidate, merge and/or sell assets; (c) may not file voluntarily a bankruptcy petition without the consent of independent managers or independent directors and (d) shall conduct itself in accordance with certain "separateness covenants", including, but not limited to, the maintenance of its books, records, bank accounts, and assets separate from those of any other Person.
(p) Borrower and SPC Member shall at all times cause there to be at least two duly appointed members of the board of directors (each an "Independent Director") of the Independent Managers of Borrower and SPC Member, respectively, reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, will not be while serving and may not have been at any time during the preceding five years (i) a stockholder, director (other than an Independent Director), manager, member, officer, employee, partner, attorney or counsel of such corporation, Borrower, the SPC Member, or any Affiliate of any of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such corporation, Borrower, the SPC Member or any Affiliate of any of them, other than fees received in its capacity 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; provided, however, that this paragraph (p) shall apply only from and after the Securitization Date. 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 and SPC Member shall not cause or permit the board of directors of the Independent Manager of Borrower or SPC Member, respectively, 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, requires a vote of the board of directors of the Independent Manager of Borrower or SPC Member, as the case may be, unless at the time of such action there shall be at least two members who are Independent Directors; provided, however, that this paragraph (q) shall apply only after the Securitization Date.
(r) Borrower and its Independent Manager shall conduct its business so that the assumptions made with respect to Borrower in any Insolvency Opinion delivered in connection with any Securitization of the Loan shall be true and correct in all respects; provided, however, that this paragraph (r) shall only apply after the Securitization Date.
(s) Borrower will permit only duly authorized officers of Borrower to have access to its bank accounts.
(t) Borrower shall pay the salaries of its own employees and maintain a sufficient number of employees 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. Upon the withdrawal or the disassociation of the Independent Manager of either Borrower or SPC Member, Borrower and SPC Member, as the case may be, shall immediately appoint a new member whose articles of incorporation are substantially similar to those of the Independent Manager and, in the event a non-consolidation opinion has been provided to Lender, Borrower shall deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new single purpose entity and its equity owners.
(v) Borrower and SPC Member shall each have at all times at least two persons who shall automatically become members having a 0% economic interest in Borrower and SPC Member, respectively (each, a "Springing Member"), simultaneously upon the occurrence of any event which would cause the sole member of Borrower or SPC Member to cease to be a member of Borrower or SPC Member, as the case may be (a "Springing Event"); provided that if a single purpose entity serves as a Springing Member, only one Springing Member shall be required. Upon the occurrence of a Springing Event, Borrower and SPC Member shall be continued without dissolution and each Springing Member shall, without any action of any person or entity, automatically become a member of Borrower or SPC Member, as the case may be, having a 0% economic interest in Borrower or SPC Member, as the case may be, and the personal representative(s) (as defined in the Act) of each member shall automatically become an unadmitted assignee of each member respectively, being entitled thereby only to the distributions to which such member was entitled pursuant to the operating agreement of Borrower or SPC Member, as the case may be, and any other right conferred thereupon by the Act. Pursuant to Section 18-301 of the Act, each Springing Member shall not be required to make any capital contributions to Borrower or SPC Member, as the case may be, and shall not receive any limited liability company interest in Borrower or SPC Member, as the case may be. Prior to its admission to Borrower or SPC Member, as the case may be, as a member of Borrower or SPC Member, as the case may be, pursuant to this subparagraph (v), each Springing Member shall have no interest (economic or otherwise) and is not a member of Borrower or SPC Member. 1350 Corp., a Delaware corporation, shall be the initial Springing Member of Borrower, and 1350 Mezzanine Corp., a Delaware corporation, shall be the initial Springing Member of SPC Member; provided however, that such initial Springing Members shall not be admitted as a member of Borrower or SPC Member, as the case may be, until a Springing Event shall have occurred. Upon the death, resignation, dissolution or other event that causes a Springing Member to be unable to fulfill its obligations under the operating agreement of Borrower or SPC Member, as the case may be, or, if admitted as a member of Borrower or SPC Member, it shall cease to be a member of Borrower or SPC Member, as the case may be, a new Springing Member shall be appointed and sign an amendment to the operating agreement of Borrower or SPC Member, as the case may be, acknowledging such an appointment. The Bankruptcy (as defined in Sections 18-101(1) and 18-304 of the Act) of any member or Springing Member shall not cause such member or Springing Member to cease to be a member of Borrower or SPC Member, as the case may be, and upon the occurrence of such an event, the business of Borrower or SPC Member, as the case may be, shall continue without dissolution.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Property, (ii) incidental personal property necessary for the ownership or operation of the Property and shall (iii) Permitted Investments, cash and cash equivalents.
(b) Borrower will not engage in any business, 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 respect any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any such constituent party, except upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties other than any such party, and Borrower represents and warrants that the terms and conditions of the Lease and Master Supervisory Agreement entered into between Borrower and one or more of its Affiliates relating to the Purchased Assets health club facilities at the Property (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder)collectively, those Purchased Assets which have been repurchased from Purchaser by Seller the “Health Club Documents”) meet the requirements of this clause (provided that such Purchased Assets are transferred promptly to an entity c) in light of the economics of the health club facilities at the Property and the REIT rules affecting (directly or indirectly) Borrower.
(d) Borrower has not incurred and will not incur any Indebtedness other than Seller after such repurchase)(i) the Debt, and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; (ii) Seller 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 more than sixty (60) days past due, (y) incurred in the ordinary course of business and (z) not more than three percent (3%) 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 to any other Person (including any Affiliate or third party constituent party), and shall not acquire obligations or securities of its Affiliates or owners.
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderf) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its all applicable organizational formalities and to 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 without the prior consent of Lender in any manner that (vii) Seller shall violates or is inconsistent with any of 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 (except that such and any other Person. Borrower’s assets will not be listed as assets on the financial statements statement of any other Person, provided, however, Borrower’s assets may be included in a consolidated to the extent consolidation is permitted or required under GAAP or as a matter financial statement of Requirements of Law; provided, any Affiliate provided that (i) appropriate notation shall be made inclusion on such consolidated financial statements statement is in accordance with the requirements of GAAP (or such other accounting method reasonably acceptable to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and Lender), (ii) such consolidated financial statement shall contain a footnote to the effect that Borrower’s assets shall also be are owned by Borrower and (iii) such assets are listed on SellerBorrower’s own separate balance sheet) and . Borrower will file its own tax returnsreturns 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 maintain its books, if any records, resolutions and agreements as official records.
(except to the extent 54 consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity); (viii) Seller shall Borrower will be, and at all times shall will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate 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, and shall not identify itself or any of its Affiliates as a division or part of the other; other and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(viiij) Seller shall 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 and shall remain solvent; providedoperations.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, that the foregoing shall not require any memberdissolution, partner winding up, consolidation or shareholder merger, in whole or in part, of Seller to make any additional capital contributions to Seller; Borrower.
(ixl) Seller shall Borrower will not commingle its the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person Person, and shall will hold all of its assets in its own name.
(m) Borrower has and will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others; 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 (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 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 Person. 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. A natural person who satisfies the foregoing definition except for being the independent director or manager of an Affiliate of Borrower and/or of a SPC Party shall not be disqualified from serving as an Independent Director of Borrower or SPC Party, as applicable, if such Affiliate is a special purpose entity that does not own a direct or indirect equity interest in Borrower or any co-borrower with Borrower, if any, and if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities substantially similar to those set forth in this Section 3.1.24.
(q) Borrower shall not cause or permit the board of directors of any SPC Party or 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 SPC Party and/or 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 Insolvency Opinion shall be true and correct in all material 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 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 Borrower and any SPC Party.
(s) Borrower will not permit any Affiliate or constituent party independent access to its bank accounts, other than Manager (including its authorized employees) in accordance with the 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.
(v) Borrower shall allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including for shared office space and for services performed by any employee of an Affiliate.
(w) Borrower shall not pledge its assets for the benefit of any other Person (other than (x) Intentionally Omittedto Lender with respect to the Loan and (y) equipment secured by permitted equipment financings or equipment leases) and Borrower shall not engage in any sale or transfer of its assets outside the ordinary course of its business or in violation of this Agreement and the other Loan Documents.
(x) Borrower shall not buy or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities).
(y) Borrower shall not form, acquire or hold any subsidiary or own any equity interest in any other entity.
(z) Neither Borrower nor SPC Party shall, without the affirmative vote of the managing member and the board of directors of Borrower or of such SPC Party, as applicable, including both Independent Directors of Borrower or of SPC Party, as applicable:
(i) File or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding; institute any proceedings under any applicable insolvency law or otherwise seek relief under any laws relating to the relief from debts or the protection of debtors generally, on behalf of Borrower or of SPC Party;
(ii) Seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for SPC Party or Borrower or a substantial portion of either of their properties;
(iii) Make any assignment for the benefit of the creditors of SPC Party or Borrower; or
(iv) Take any action in furtherance of any of the foregoing.
Appears in 1 contract
Single Purpose. ENTITY COVENANTS On Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and at all times while this Agreement until such time as the Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or any Transaction hereunder is in effect, Seller covenants that: property other than (i) Seller shall own no assetsthe Individual Properties, and shall (ii) incidental personal property necessary for the ownership or operation of the Individual Properties.
(b) Borrower will not engage in any business other than the ownership, management and operation of the Individual Properties.
(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 any Indebtedness outstanding on the date 0hereof, and will not hereafter incur any Indebtedness, in each case, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than (i) the Debt, (ii) unsecured trade payables incurred in the ordinary course of business, (iii) debt incurred in connection with capital lease obligations and purchase money financing with respect to equipment and other than personal property used on the Individual Properties, provided, however with respect to the Purchased Assets (including Eligible Assets which Seller intends Indebtedness referred to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), and other assets incidental to the origination, acquisition, ownership, financing and disposition of the Purchased Assets; in subclauses (ii) Seller and (iii), (A) the same is not secured by a lien or security interest in the Individual Properties (other than the personal property so financed) and (B) the amount of all Indebtedness in the aggregate incurred pursuant to subclauses (ii) and (iii), shall not exceed $20,000,000 in the aggregate at any one time outstanding (the Indebtedness referred to in clauses (i), (ii) and (iii), the "PERMITTED INDEBTEDNESS"). No Indebtedness other than the Debt may be secured (subordinate or PARI PASSU) by the Individual Properties.
(e) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or third party constituent party), and shall not acquire obligations or securities of its Affiliates Affiliates.
(in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunderf) to Mortgagors or Mezzanine Borrowers or otherwise in connection therewith); (iii) Seller shall Borrower is and will remain solvent and Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expensesexpenses of which Borrower will pay its allocated share) only from its own assets as the same shall become due; .
(ivg) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall Borrower has done or caused to be done and will do all things necessary to observe its organizational formalities and to 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.
(vih) Seller shall Except to the extent permitted under the Loan Documents, Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except and any constituent party. Borrower will prepare separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, and not have its assets listed on the financial statement of any other Person, provided, however, that such financial statements Borrower's assets may be included in a consolidated to the extent consolidation is permitted or required under GAAP or as a matter financial statement of Requirements of Law; provided, its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from Borrower and such Affiliate Affiliates and to indicate that Seller’s Borrower's assets and credit are not available to satisfy the debts and other obligations of such Affiliate Affiliates or any other Person and (ii) such assets shall also be listed on Seller’s Borrower's own separate balance sheet) and . Borrower will file its own tax returns, if any returns (except to the extent 54 consolidation Borrower is required or permitted under Requirements of Law, to file any such as in the case of tax returns) and will not file a disregarded entity); (vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other; (viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall not commingle its funds or other assets consolidated federal income tax return with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others; (x) Intentionally Omitted;unless required by applicable
Appears in 1 contract
Sources: Loan Agreement (Hilton Hotels Corp)