Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full: (i) Borrower has not owned and will not own any asset or property other than (A) the Property and the TIF Loan, and (B) incidental personal property necessary for the ownership or operation of the Property. (ii) Borrower has not and will not engage in any business other than the ownership, leasing, management, operation and financing of the Property and Borrower has and will conduct and operate its business as presently conducted and operated. (iii) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party. (iv) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time. (v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates. (vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower. (vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lender. (viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records. (ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name. (x) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower. (xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower. (xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name. (xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person. (xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property. (xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party. (xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts. (xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower. (xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower. (xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors. (b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full: (i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property. (ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated. (iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party. (iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time. (v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates. (vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower. (vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender. (viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records. (ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name. (x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee. (xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee. (xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name. (xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person. (xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person. (xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party. (xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts. (xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that since Borrower’s creation, as of the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(ia) Borrower has not owned owned, does not own and will not own any asset or property other than (Ai) the Property and the TIF LoanProperty, and (Bii) incidental personal property necessary for the ownership or operation of the Property.
(iib) Borrower has not engaged, does not engage, and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, Debt and (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a note, note and in an aggregate amount not exceeding one percent (31%) on commercially reasonable terms and conditions, and of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (4ii) due shall be (x) not more than sixty (60) days past due and (y) incurred in the date incurred and paid on or prior to such date, and/or ordinary course of business (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness Indebtedness described in the foregoing clauses (Bi) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(Aii) and (B) hereof, shall not exceedis referred to herein, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of as “Permitted Indebtedness”). No Indebtedness other than the Debt allocable to may be secured (subordinate or pari passu) by the Individual Properties securing the Loan at such timeProperty.
(ve) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vif) Borrower has been, is and intends to remain solvent and Borrower has paid and will intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, thathowever, in each such case, there exists sufficient cash flow from the Property to do so and foregoing shall not be interpreted so as to require an equity owner any member of Borrower or any constituent entity to make contribute additional capital contributions to in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(viig) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will notnot terminate or fail to comply with the provisions of its organizational documents, nor will Borrower permit any constituent party to or amend, modify, terminate modify or otherwise change the its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lenderdocuments.
(viiih) Borrower has maintained and will maintain all of its accounts, books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent partyother Person. Borrower’s assets have not been and will not be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person Person, and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will not file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirementsany other Person. Borrower has maintained and will shall maintain its books, records, resolutions and agreements as official records.
(ixi) Borrower has been and will be, and has and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other other, and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(xj) Borrower has maintained and will intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from operations; provided, however, the Property to do so) and foregoing shall not be interpreted so as to require any equity owner member of Borrower or any constituent entity to make contribute additional capital contributions to in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(xik) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xiil) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has held and will hold all of its assets in its own name.
(xiiim) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xivn) Borrower has not and will not assume or guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has 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.
(xvo) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iiiii) all the organizational documents of the Operating Lessee and any SPC PartyBorrower.
(xvip) Operating Lessee Borrower has not permitted, permitted and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xviiq) Operating Lessee Borrower has paid and, subject to sufficient cash flow from the Property, and shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall mamaintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(r) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(s) Borrower has not, and without the unanimous consent of all of its members, partners, directors or managers (including each Independent Director) will not, take any action that might cause Borrower to become insolvent.
(t) Borrower has allocated and will allocate fairly and reasonably shared expenses, including shared office space.
(u) Except in connection with the Loan, Borrower has not pledged and will not pledge its assets for the benefit of any other Person.
(v) Borrower either (i) has no, and will have no, obligation to indemnify its officers, directors, managers, members or partners, as the case may be, or (ii) if it has any such obligation, such obligation is fully subordinated to the Debt and will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(w) Borrower will consider the interests of Borrower’s creditors in connection with all limited liability company or limited partnership actions.
(x) Except as provided in the Loan Documents, Borrower has not and will not have any of its obligations guaranteed by any Affiliate.
(y) The organizational documents of Borrower shall provide that except as may be expressly permitted herein as long as any portion of the Obligations remain outstanding, Borrower will not without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed:
(i) except in connection with a sale or other transfer permitted under the Loan Documents, sell all or substantially all of its assets;
(ii) amend its organizational documents with respect to the matters set forth in this Section 3.1.24, without the consent of Lender; or
Appears in 1 contract
Sources: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ia) Borrower has does not owned own and will not own any asset or property other than (Ai) the Property and the TIF LoanIndividual Properties, and (Bii) incidental personal property or other assets necessary for the ownership or operation of the PropertyIndividual Properties.
(iib) Borrower has not and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property Individual Properties, entering into the Loan as a co-borrower and Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a notenote and (iii) Indebtedness incurred in the financing of equipment and other personal property used at the Individual Properties; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) for each Individual Property, not in excess of three percent (3%) of the Allocated Loan Amount for such Individual Property in the aggregate, (3y) on commercially reasonable terms and conditions, and (4) due paid not more than sixty (60) days past from the date incurred as to the matters in subclause (ii) above and paid on not more than sixty (60) days from the date due as to the matters in subclause (iii) above, subject only to Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the provisions of this Agreement and (z) incurred in the ordinary course of business. No Indebtedness other than the Debt may be secured (subordinate or prior to such date, and/or (Cpari passu) Permitted Equipment Leases; provided however, the aggregate amount by any of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(ve) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vif) Borrower has been, is and intends to will remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(viig) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect or such constituent party without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 3.1.24, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(viiih) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements (or the notes thereto) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will not file a consolidated federal income tax return with another any other Person as required and/or permitted by applicable Legal Requirementsexcept to the extent Borrower is a disregarded entity for federal income tax purposes. Borrower has maintained and will shall maintain its books, records, resolutions and agreements as official records.
(ixi) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own nameother.
(xj) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borroweroperations.
(xik) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(xiil) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiiim) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xivn) Borrower has not and will not guarantee guarantee, or become obligated for the debts of any other Person and has 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, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xvi) If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”), as applicable, shall be a corporation or a Delaware single member limited liability company acceptable to Lender whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(ii) If Borrower or any SPC Party of Borrower is a single member limited liability company, Borrower or such SPC Party shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower or such SPC Party, shall immediately become the sole member of Borrower or such SPC Party, and the other of which shall become the sole member of Borrower or such SPC Party if the first such springing member no longer is available to serve as such sole member.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed members of the board of directors of each SPC Party and the Borrower who are provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and which are reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than as an Independent Director), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a “special purpose entity” affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower shall not be disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) Borrower shall not cause or permit the board of directors of any SPC Party and Borrower to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a unanimous vote of the board of directors of each SPC Party and Borrower unless at the time of such action there shall be at least two members who are each an Independent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvis) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accountsaccounts other than a Manager approved by Lender, and then in such circumstances, only in accordance with the terms of its respective Management Agreement.
(xviit) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviiiu) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, it and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Borrower has not owned and will not own any asset or property other than (A) the Property and Property, (B) the TIF LoanPrior Property, and (BC) incidental personal property necessary for the ownership ownership, leasing or operation of the Property and the Prior Property.
(ii) Borrower has not and will not engage in any business other than the ownership, leasing, management, operation and financing of the Property and the Prior Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(iii) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, Debt and the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, exceed at any time, five time two percent (52%) of the initial outstanding principal amount of the Debt allocable to the Individual Properties securing the Loan at such timeDebt.
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and intends to will remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrowerso.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in or any material respect SPC Party without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or and has filed not and will not file a consolidated federal income tax return with another any other Person (except as required and/or or permitted by applicable Legal Requirements). Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower).
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, and shall pay from its own funds its own liabilities and expenses, including all any required Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, and shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager Director (regardless of whether such Independent Manager Director is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (cd) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and Property, (B) tangible its leasehold interest in the Prior Property, and intangible (c) personal property necessary for the current ownership or operation of the Property and the Prior Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and the Prior Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Prior Loan, (B) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (BC) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, exceed at any time, five time two percent (52%) of the initial outstanding principal amount of the Debt allocable to the Individual Properties securing the Loan at such timeDebt.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrowerso.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in or any material respect SPC Party (if any) without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or and has filed not and will not file a consolidated federal income tax return with another any other Person (except as required and/or or permitted by applicable Legal Requirements). Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee).
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, and shall pay from its own funds its own liabilities and expenses, including all any required Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall mamaintain a sufficient number of employees (if any) in light of its contemplated business operations.
(xviii) Operating Lessee has compensated and shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Director (regardless of whether such Independent Director is engaged at the Operating Lessee or SPC Party level), Operating Lessee has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent to the appointment of a receiver, liquidator or any similar official, (c) take any action that might cause such entity to become insolvent, or (d) make an assignment for the benefit of creditors.
(c) Each of Borrower and Operating Lessee hereby represents and warrants that each of Borrower and Operating Lessee (i) is and has always been duly formed, validly existing and in good standing in the state of its incorporation and in all other jurisdictions where it is qualified to do business; (ii) has not had and does not have any judgments or liens of any nature against it except for Permitted Encumbrances; (iii) has been and is in compliance, in all material respects, with all Legal Requirements and has received all material permits necessary for it to operate its contemplated business; (iv) is not the subject of,
Appears in 1 contract
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that since Borrower’s creation, as of the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(ia) Borrower has not owned owned, does not own and will not own any asset or property other than (Ai) the Property and the TIF LoanProperty, and (Bii) incidental personal property necessary for the ownership or operation of the Property.
(iib) Borrower has not engaged, does not engage, and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, Debt and (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a note, note and in an aggregate amount not exceeding one percent (31%) on commercially reasonable terms and conditions, and of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (4ii) due shall be (x) not more than sixty (60) days past due and (y) incurred in the date incurred and paid on or prior to such date, and/or ordinary course of business (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness Indebtedness described in the foregoing clauses (Bi) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(Aii) and (B) hereof, shall not exceedis referred to herein, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of as “Permitted Indebtedness”). No Indebtedness other than the Debt allocable to may be secured (subordinate or pari passu) by the Individual Properties securing the Loan at such timeProperty.
(ve) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vif) Borrower has been, is and intends to remain solvent and Borrower has paid and will intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, thathowever, in each such case, there exists sufficient cash flow from the Property to do so and foregoing shall not be interpreted so as to require an equity owner any member of Borrower or any constituent entity to make contribute additional capital contributions to in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(viig) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will notnot terminate or fail to comply with the provisions of its organizational documents, nor will Borrower permit any constituent party to or amend, modify, terminate modify or otherwise change the its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lenderdocuments.
(viiih) Borrower has maintained and will maintain all of its accounts, books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent partyother Person. Borrower’s assets have not been and will not be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s assets may be included in a EAST\53909776.4 consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person Person, and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and returns)and will not file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirementsany other Person. Borrower has maintained and will shall maintain its books, records, resolutions and agreements as official records.
(ixi) Borrower has been and will be, and has and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other other, and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(xj) Borrower has maintained and will intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from operations; provided, however, the Property to do so) and foregoing shall not be interpreted so as to require any equity owner member of Borrower or any constituent entity to make contribute additional capital contributions to in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(xik) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xiil) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has held and will hold all of its assets in its own name.
(xiiim) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xivn) Borrower has not and will not assume or guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has 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.
(xvo) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iiiii) all the organizational documents of the Operating Lessee and any SPC PartyBorrower.
(xvip) Operating Lessee Borrower has not permitted, permitted and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xviiq) Operating Lessee Borrower has paid and, subject to sufficient cash flow from the Property, and shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall mamaintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not be EAST\53909776.4 interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(r) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and pay from its own assets all obligations of any kind incurred; provided, however, the foregoing shall not be interpreted so as to require any member of Borrower or any constituent entity to contribute additional capital in connection therewith, it being expressly understood and agreed that this provision is solely for the purpose of preserving the bankruptcy remote aspects of Borrower.
(s) Borrower has not, and without the unanimous consent of all of its members, partners, directors or managers (including each Independent Director) will not, take any action that might cause Borrower to become insolvent.
(t) Borrower has allocated and will allocate fairly and reasonably shared expenses, including shared office space.
(u) Except in connection with the Loan, Borrower has not pledged and will not pledge its assets for the benefit of any other Person.
(v) Borrower either (i) has no, and will have no, obligation to indemnify its officers, directors, managers, members or partners, as the case may be, or (ii) if it has any such obligation, such obligation is fully subordinated to the Debt and will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(w) Borrower will consider the interests of Borrower’s creditors in connection with all limited liability company or limited partnership actions.
(x) Except as provided in the Loan Documents, Borrower has not and will not have any of its obligations guaranteed by any Affiliate.
(y) The organizational documents of Borrower shall provide that except as may be expressly permitted herein as long as any portion of the Obligations remain outstanding, Borrower will not without the prior written consent of Lender, not to be unreasonably withheld, conditioned or delayed:
(i) except in connection with a sale or other transfer permitted under the Loan Documents, sell all or substantially all of its assets;
(ii) amend its organizational documents with respect to the matters set forth in this Section 3.1.24, without the consent of Lender; or
Appears in 1 contract
Sources: Loan Agreement (O'Donnell Strategic Industrial REIT, Inc.)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ia) Borrower has does not owned own and will not own any asset or property other than (Ai) the Property and the TIF LoanProperty, and (Bii) incidental personal property necessary for the ownership or operation ownership, operation, leasing, management and/or maintenance of the Property.
(iib) Borrower has not and will not engage in any business other than the ownership, leasingfinancing, management, operation operation, leasing, maintenance and financing sale of the Property and Borrower has other activities incidental thereto (in each case in accordance with the terms and will conduct provisions of this Agreement and operate its business as presently conducted and operatedthe other Loan Documents).
(iiic) Borrower has not and will not enter into any contract or agreement (other than the Exchange Documents) with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a note, (3) on commercially reasonable terms and conditions, note and (4iii) due Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that (A) any Indebtedness incurred pursuant to subclause (ii) shall be (x) not more than sixty (60) days past the date incurred and paid on or prior to such date(y) incurred in the ordinary course of business, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall any Indebtedness incurred pursuant to subclauses (ii) and (iii) in an aggregate amount not to exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any one time, five three percent (53%) of the initial original principal amount balance of the Loan. No Indebtedness other than the Debt allocable to may be secured (subordinate or pari passu) by the Individual Properties securing the Loan at such timeProperty.
(ve) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower.
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ia) Borrower has does not owned own and will not own any asset or property other than (Ai) the Property and the TIF LoanIndividual Property, and (Bii) incidental personal property or other assets necessary for the ownership or operation of the Individual Property.
(iib) Borrower has not and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property Individual Property, entering into the Loan as a co-borrower and Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a notenote and (iii) Indebtedness incurred in the financing of equipment and other personal property used at the Individual Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of three percent (3%) of the Allocated Loan Amount, (3y) on commercially reasonable terms and conditions, and (4) due paid not more than sixty (60) days past from the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable as to the Individual Properties securing the Loan at such time.
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, matters in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and subclause (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed above and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower.
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past from the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable due as to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, matters in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and subclause (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid andabove, subject only to sufficient cash flow from Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the Property, shall pay from its own funds its own liabilities provisions of this Agreement and expenses, including all Property-related expenses and (z) incurred in the salaries of its own employees (if any) from its own funds and has maintained and shall maordinary course of
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)
Single Purpose. (a) Each Borrower hereby represents and warrants toto Lender, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full, such Borrower:
(i) Borrower has not owned owned, does not own and will not own any asset or property other than (A) the Property and the TIF Loanits ownership interest in its respective Mortgage Borrower, and (B) incidental personal property necessary for the ownership or operation of the Property.with respect thereto;
(ii) Borrower has not engaged, does not engage and will not engage in any business other than the ownership, leasing, management, operation and financing ownership of the Property and Borrower has Collateral and will conduct and operate its business as presently proposed to be conducted and operated.;
(iii) Borrower has not and will not enter into any contract or agreement agreement, with any Affiliate of Borrowerany Borrower Party, any constituent party of any Borrower Party or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.;
(iv) 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 (A) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, and (B) trade and operational indebtedness liabilities incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) relating to that Collateral in amounts not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due to exceed $10,000.00 in the aggregate which liabilities are not more than sixty (60) days past the date incurred incurred, are not evidenced by a note and are paid on or prior to such date, and/or (C) Permitted Equipment Leaseswhen due; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the no Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of other than the Debt allocable to may be secured subordinate, pari passu or otherwise) by the Individual Properties securing the Loan at such time.Collateral;
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.;
(vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.;
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor not and will Borrower not permit any constituent party to amend, modify, terminate modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents Organizational Documents of the applicable Borrower in any material respect without the prior written consent of Lender.;
(viii1) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts as official records, separate from those of its Affiliates and any constituent party. Borrower’s assets have not and , (2) will not permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that a Mortgage Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (iA) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Mortgage Borrower and such Affiliates and to indicate that such Mortgage Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person Person, and (iiB) such assets shall be also listed on such Mortgage Borrower’s own separate balance sheet. Borrower ; and (3) has maintained and will maintain its own books, records, financial statements and bank accounts separate from any other Person.
(ix) has filed and will file its own tax returns (to the extent Borrower that it is required to file any such tax returns) or has filed and will not file a consolidated federal income tax return with another Person as required and/or any other Person, unless permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.to do so under the Code;
(ixx) Borrower has been and been, will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of Affiliate of Borrower (or any constituent party of any Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has conducted and 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 other, and has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.;
(xxi) Borrower has maintained and will intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower.operations;
(xixii) Neither Borrower will not seek or effect nor permit any of its constituent party has or will parties to seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.it;
(xiixiii) except with respect to another Borrower as contemplated by the Loan Documents, has not commingled and will not commingle the its funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has held and will hold all of its assets in its own name.;
(xiiixiv) except with respect to another Borrower as contemplated by the Loan Documents, has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.;
(xivxv) except, with respect to another Mortgage Borrower as contemplated by the Loan Documents, has not guaranteed or become obligated for and will not guarantee or become obligated for the debts of any other Person and has not, does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.;
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party of any Borrower independent access to its bank accounts.;
(xvii) except in the case of a Mortgage Borrower only, with respect to another Mortgage Borrower as contemplated by the TIC Agreement, has paid and, subject to sufficient cash flow from the Property, shall and will pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall will maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.; and
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall and will compensate each of its consultants and agents from its funds for services provided to it, it and has paid and shall will pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ia) Borrower has does not owned own and will not own any asset or property other than (Ai) its interest in the Property and the TIF LoanProperty, and (Bii) incidental personal property necessary for the ownership or operation of the Property.
(iib) Borrower has not and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property and Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a notenote and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of Four Million and No/100 Dollars ($4,000,000.00) in the aggregate, (3y) on commercially reasonable terms and conditions, and (4) due paid not more than sixty (60) days past from the date incurred and paid on or prior to such date, and/or (C) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(A) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable as to the Individual Properties securing the Loan at such time.
(v) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Borrower has been, is and intends to remain solvent and Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, matters in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(vii) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect without the prior consent of Lender.
(viii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and subclause (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed above and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Borrower has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borrower.
(xi) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(xii) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiii) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Borrower has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xv) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvi) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviii) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past from the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable due as to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, matters in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and subclause (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid above and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Single Purpose. (a) Each Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(ia) Borrower has does not owned own and will not own any asset or property other than (Ai) the Property and the TIF Loanits Individual Property(ies), and (Bii) incidental personal property or other assets necessary for the ownership or operation of the Propertyits Individual Property(ies).
(iib) Borrower has not and will not engage in any business other than the ownership, leasing, management, management and operation and financing of the Property Individual Properties, entering into the Loan as a co-borrower and such Borrower has and will conduct and operate its business as presently conducted and operated.
(iiic) Borrower has not and will not enter into any contract or agreement with any Affiliate of BorrowerBorrowers, any constituent party of Borrower Borrowers or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an armsarm’s-length basis with third parties other than any such party.
(ivd) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), Indebtedness other than (Ai) the Debt, the Prior Loans, and, with respect to Philadelphia Borrower, the TIF Loan, (Bii) unsecured trade payables and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) debt not evidenced by a notenote and (iii) Indebtedness incurred in the financing of equipment and other personal property used at the Individual Property(ies) that it owns; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) for each Individual Property, not in excess of three percent (3%) of the Allocated Loan Amount for such Individual Property in the aggregate, (3y) on commercially reasonable terms and conditions, and (4) due paid not more than sixty (60) days past from the date incurred as to the matters in subclause (ii) above and paid on or prior not more than sixty (60) days from the date due as to the matters in subclause (iii) above, subject only to such date, and/or (C) Permitted Equipment Leases; provided however, Borrower’s right to diligently prosecute a good faith dispute as to amounts due and payable in accordance with the aggregate amount provisions of the indebtedness described in (B) this Agreement and (C), together with the Indebtedness of Operating Lessee set forth in Section 3.1.24(b)(iv)(Az) and (B) hereof, shall not exceed, collectively, for all Borrowers, for all Individual Properties, incurred in the aggregate, at any time, five percent (5%) ordinary course of the initial principal amount of business. No Indebtedness other than the Debt allocable to may be secured (subordinate or pari passu) by any of the Individual Properties securing except with respect to the Loan at such timeGuaranty of Other Loans and the Guaranty Security Documents delivered by each Borrower in connection therewith.
(ve) Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party) (other than the TIF Loan), and has not and shall not acquire obligations or securities of its Affiliates.
(vif) Borrower has been, is and intends to will remain solvent and such Borrower has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require an equity owner to make additional capital contributions to Borrower.
(viig) Borrower has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify, terminate modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower in any material respect or such constituent party without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 3.1.24, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(viiih) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Borrower’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements (or the notes thereto) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall be also listed on Borrower’s own separate balance sheet. Borrower has filed and will file its own tax returns (to the extent Borrower is required to file any such tax returns) or has filed and will not file a consolidated federal income tax return with another any other Person as required and/or permitted by applicable Legal Requirementsexcept to the extent Borrower is a disregarded entity for federal income tax purposes. Borrower has maintained and will shall maintain its books, records, resolutions and agreements as official records.
(ixi) Borrower has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower (or any constituent party of Borrower), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own nameother.
(xj) Borrower has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Borroweroperations.
(xik) Neither Borrower nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower.
(xiil) Borrower has not and will not commingle the funds and other assets of Borrower with those of any Affiliate or constituent party or any other Person, except with respect to any co-Borrower, and has and will hold all of its assets in its own name.
(xiiim) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xivn) Borrower has not and will not guarantee guarantee, other than as set forth in the Guaranty of Other Loans, or become obligated for the debts of any other Person and has 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, other than debts or obligations of Operating Lessee relating to the Property incurred in the ordinary course of business or as evidenced by the Loan Documents, including but not limited to, guaranteeing any Franchise Agreement or Brand Management Agreement for an Individual Property.
(xvi) If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”), as applicable, shall be a corporation or a Delaware single member limited liability company acceptable to Lender whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(ii) If Borrower or any SPC Party of Borrower is a single member limited liability company, Borrower or such SPC Party shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower or such SPC Party, shall immediately become the sole member of Borrower or such SPC Party, and the other of which shall become the sole member of Borrower or such SPC Party if the first such springing member no longer is available to serve as such sole member.
(p) Borrower shall at all times cause there to be at least two (2) duly appointed members of the board of directors of each SPC Party and the Borrower who are provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) and which are reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of such SPC Party, Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than as an Independent Director), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a “special purpose entity” affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower shall not be disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) Borrower shall not cause or permit the board of directors of any SPC Party and Borrower to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a unanimous vote of the board of directors of each SPC Party and Borrower unless at the time of such action there shall be at least two members who are each an Independent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Borrower and any SPC Party.
(xvis) Borrower has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accountsaccounts other than a Manager approved by Lender, and then in such circumstances, only in accordance with the terms of its respective Management Agreement.
(xviit) Borrower has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations, provided the foregoing shall not require any equity owner to make additional capital contributions to Borrower.
(xviiiu) Borrower has compensated and, subject to sufficient cash flow from the Property, shall compensate each of its consultants and agents from its funds for services provided to it, it and has paid and shall pay from its own assets all obligations of any kind incurred, provided that, the foregoing shall not require any equity owner to make any additional capital contributions to Borrower.
(xix) Without the unanimous written consent of all of its partners or members, as applicable, and the consent of each Independent Manager (regardless of whether such Independent Manager is engaged at the Borrower or SPC Party level), Borrower has not and shall not: (a) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any state or federal bankruptcy or insolvency laws, (b) seek or consent (other than a consent to a request made by Lender) to the appointment of a receiver, liquidator or any similar official, or (c) make an assignment for the benefit of creditors.
(b) Each Operating Lessee hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(i) Operating Lessee has not owned and will not own any asset or property other than (A) its leasehold interest in the Property and (B) tangible and intangible personal property necessary for the current ownership or operation of the Property.
(ii) Operating Lessee has not and will not engage in any business other than the leasing, management and operation of the Property and Operating Lessee has and will conduct and operate its business as presently conducted and operated.
(iii) Operating Lessee has not and will not enter into any contract or agreement with any Affiliate of Operating Lessee, any constituent party of Operating Lessee or any Affiliate of any constituent party, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(iv) Operating Lessee has not incurred and will not incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, and/or (B) Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (A) and (B), together with the Indebtedness of Borrower set forth in Section 3.1.24(a)(iv)(B) and (C) hereof, shall not exceed, collectively, for Mortgage Operating Lessee for all Individual Properties, in the aggregate, at any time, five percent (5%) of the initial principal amount of the Debt allocable to the Individual Properties securing the Loan at such time.
(v) Operating Lessee has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), other than working capital advances to Manager pursuant to the terms of the Management Agreement and has not and shall not acquire obligations or securities of its Affiliates.
(vi) Operating Lessee has been, is and will remain solvent and Operating Lessee has paid and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so and shall not require any equity owner to make additional capital contributions to Borrower.
(vii) Operating Lessee has done or caused to be done and will do or cause to be done all things necessary to observe organizational formalities and preserve its existence, and Operating Lessee will not, nor will Operating Lessee permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Operating Lessee in any material respect without the prior consent of Lender.
(viii) Operating Lessee has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party. Operating Lessee’s assets have not and will not be listed as assets on the financial statement of any other Person; provided, however, that Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Operating Lessee and such Affiliates and to indicate that Operating Lessee’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets shall also be listed on Borrower’s own separate balance sheet. Operating Lessee has filed and will file its own tax returns (to the extent Operating Lessee is required to file any such tax returns) or has filed and will file a consolidated federal income tax return with another Person as required and/or permitted by applicable Legal Requirements. Operating Lessee has maintained and will maintain its books, records, resolutions and agreements as official records.
(ix) Operating Lessee has been and will be, and at all times has and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Operating Lessee or any constituent party of Operating Lessee), has and shall correct any known misunderstanding regarding its status as a separate entity, has and shall conduct business in its own name, has not and shall not identify itself or any of its Affiliates as a division or part of the other and has and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(x) Operating Lessee has maintained and will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations (provided that there exists sufficient cash flow from the Property to do so) and shall not require any equity owner to make additional capital contributions to Operating Lessee.
(xi) Neither Operating Lessee nor any constituent party has or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Operating Lessee.
(xii) Operating Lessee has not and will not commingle the funds and other assets of Operating Lessee with those of any Affiliate or constituent party or any other Person, and has and will hold all of its assets in its own name.
(xiii) Operating Lessee has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(xiv) Operating Lessee has not and will not guarantee or become obligated for the debts of any other Person and has not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person.
(xv) Operating Lessee shall conduct its business so that the assumptions made with respect to Operating Lessee in the Insolvency Opinion and any New Non-Consolidation Opinion shall be true and correct in all respects. In connection with the foregoing, Operating Lessee hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Operating Lessee or any other Person) set forth in the Insolvency Opinion, and any New Non-Consolidation Opinion, (ii) all the representations, warranties and covenants in this Section 3.1.24, and (iii) all the organizational documents of the Operating Lessee and any SPC Party.
(xvi) Operating Lessee has not permitted, and will not permit any Affiliate or constituent party independent access to its bank accounts.
(xvii) Operating Lessee has paid and, subject to sufficient cash flow from the Property, shall pay from its own funds its own liabilities and expenses, including all Property-related expenses and the salaries of its own employees (if any) from its own funds and has maintained and shall ma
Appears in 1 contract
Sources: Loan Agreement (Wells Real Estate Investment Trust Inc)