Common use of Single Purpose Entity/Separateness Clause in Contracts

Single Purpose Entity/Separateness. (a) Borrower hereby represents, warrants and covenants that each of Operating Lessee and Borrower is and always has been, since the date of its respective formation, a Single Purpose Entity and has not, since the date of its respective formation, conducted any business other than as permitted pursuant to Section 7 of their respective operating agreements each dated November 9, 2005 (as amended) and has not owned any property other than as permitted pursuant to Section 7 of their respective operating agreements each dated November 9, 2005 (as amended). (b) Borrower hereby represents with respect to Borrower and Operating Lessee that it: (i) is and always has been duly formed, validly existing, and in good standing in the state of its incorporation and in all other jurisdictions where it is qualified to do business; (ii) has no judgments or liens of any nature against it except for tax liens not yet due; (iii) is in compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate; (iv) is not involved in any dispute with any taxing authority; (v) has paid all taxes which it owes; (vi) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than the ownership and operation of the Property; (vii) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full; (viii) has provided Lender with complete financial statements that reflect a fair and accurate view of the entity’s financial condition; (ix) has obtained a current Phase I environmental site assessment (ESA) for the Property prepared consistent with ASTM Practice E 1527 and the ESA has not identified any recognized environmental conditions that require further investigation or remediation; and (x) has no material contingent or actual obligations not related to the Property. (c) Borrower hereby represents with respect to Borrower and Operating Lessee that from the date of their respective formation to the date of this Agreement that it: (i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party; (ii) except with respect to indebtedness for which it was co-obligated and which has been paid and satisfied in full (the

Single Purpose Entity/Separateness. (a) Borrower hereby represents, warrants and covenants that each of Operating Lessee and Borrower is and always has been, since the date of its respective formation, a Single Purpose Entity and has not, since the date of its respective formation, conducted any business other than as permitted pursuant to Section 7 of their respective operating agreements each dated November 9, 2005 (as amended) and has not owned any property other than as permitted pursuant to Section 7 of their respective operating agreements each dated November 9, 2005 (as amended). (b) Borrower hereby represents with respect to Borrower and Operating Lessee that it: (i) is and always has been duly formed, validly existing, and in good standing in the state of its incorporation and in all other jurisdictions where it is qualified to do business; (ii) has no judgments or liens of any nature against it except for tax liens not yet due; (iii) is in compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate; (iv) is not involved in any dispute with any taxing authority; (v) has paid all taxes which it owes; (vi) has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than the ownership and operation of the Property; (vii) except for the Lawsuit, is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full; (viii) has provided Lender with complete financial statements that reflect a fair and accurate view of the entity’s financial condition; (ix) has obtained a current Phase I environmental site assessment (ESA) for the Property prepared consistent with ASTM Practice E 1527 and the ESA has not identified any recognized environmental conditions that require further investigation or remediation; and (x) has no material contingent or actual obligations not related to the Property. (c) Borrower hereby represents with respect to Borrower and Operating Lessee that from the date of their respective formation to the date of this Agreement that it: (i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party; (ii) except with respect to indebtedness for which it was co-obligated and which has been paid and satisfied in full (thethe “Former Indebtedness”), has paid all of its debts and liabilities from its assets; (iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence; (iv) has maintained all of its books, records, financial statements (except consolidated financial statements otherwise allowed by the definition of Single Purpose Entity) and bank accounts separate from those of any other Person ; (v) has not had its assets listed as assets on the financial statement of any other Person, except consolidated financial statements otherwise allowed by the definition of Single Purpose Entity; (vi) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law) and, if it is a corporation, has not filed a consolidated federal income tax return with any other Person; (vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party); (viii) has corrected any known misunderstanding regarding its status as a separate entity; (ix) has conducted all of its business and held all of its assets in its own name; (x) has not identified itself or any of its affiliates as a division or part of the other; (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name; (xii) has not commingled its assets with those of any other Person and has held all of its assets in its own name; (xiii) except for the Former Indebtedness, has not guaranteed or become obligated for the debts of any other Person; (xiv) except for the Former Indebtedness, has not held itself out as being responsible for the debts or obligations of any other Person; (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party; (xvi) except for the Former Indebtedness, has not pledged its assets to secure the obligations of any other Person and no such pledge remains outstanding except in connection with the Loan; (xvii) has maintained adequate capital in light of its contemplated business operations; (xviii) has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds; (xix) has not owned any subsidiary or any equity interest in any other entity; (xx) has not incurred any indebtedness that is still outstanding other than indebtedness that is permitted under the Loan Documents; and (xxi) has not had any of its obligations guaranteed by an affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or guarantees that are expressly contemplated by the Loan Documents. (xxii) Except for the Operating Lessee, none of the tenants holding leasehold interests with respect to the Property are affiliated with the Borrower.