Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect: (a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due. (b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement. (c) It has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence. (d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required under GAAP or as a matter of law). (e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks. (f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions. (g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement. (h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate. (i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred. (j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities). (k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. (l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger. (m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person. (n) It 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 of its Affiliates or any other Person. (o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person. (p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities. (q) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity. (r) It shall not maintain any employees.
Appears in 3 contracts
Sources: Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp), Master Repurchase Agreement (Gramercy Capital Corp)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller to make any additional capital contributions to Seller.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it Master Seller will file its own tax returns consolidated Tax returns, if any, which are required by applicable law (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has beenwill, is and will be, and at all times will hold itself out to the public as, in the case of Master Seller, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationerystationary, invoices and checks, and Master Seller or any Series Seller will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, reacquisition, ownership, financing hedging, administering, financing, refinancing, securitizing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates (other than the Transaction Documents), except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing financing, securitizing and disposing of the the Purchased Loans and Portfolio SecuritiesEligible Loans; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.
(j) It Except to the extent expressly permitted under this Agreement, it has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination acquisition, financing or acquisition refinancing of Purchased Loans and Portfolio Securities)the Eligible Loans) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller to make any additional capital contributions to Seller.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.
(on) It Except as contemplated under the Transaction Documents, it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) It shall not take any of the following actions without the affirmative vote of the Independent Manager: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicinghedging, administrationfinancing, enforcement, financing securitizing and disposition of the Purchased Loans and Portfolio SecuritiesLoans.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has not and shall not maintain any employees.
(s) Master Seller will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) Except as contemplated under the Transaction Documents, it has not pledged and will not pledge its assets to secure the obligations of any other Person.
(u) Except as contemplated under the Transaction Documents, it has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person.
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (i) prior to entering into any such asset transfer agreement, Buyer shall have reviewed such asset transfer agreement and confirmed that Seller does not have any liability or obligation under any such asset transfer agreement, and (ii) either (A) one or more Sponsors or (B) another Person acceptable to Buyer in its sole and absolute discretion agrees to be responsible and liable for the performance of any and all obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 3 contracts
Sources: Master Repurchase Agreement (NorthStar Real Estate Income II, Inc.), Master Repurchase Agreement (NorthStar Real Estate Income Trust, Inc.), Master Repurchase Agreement (Northstar Realty Finance Corp.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It Seller shall own no assets, and shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to the origination, acquisition, ownership, financing, securitization and disposition of the Purchased Assets; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates an Eligible Asset under its good faith belief that such Eligible Asset will become a Purchased Asset; provided, further, that in the event Buyer does not approve such Eligible Asset for inclusion in a Transaction, then Seller shall convey all of its right, title and interest in such Eligible Asset to a third party by not later than ten (10) Business Days after Buyer disapproves (or is deemed to have disapproved) such Eligible Asset;
(b) Seller shall not make any loans or advances to any Affiliate or third party and intends shall not acquire obligations or securities of its Affiliates other than those obligations related to remain solvent and it has paid and Purchased Assets or securities consisting of Purchased Assets or Eligible Assets which Seller believes in good faith will become a Purchased Asset;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates that are not a Seller (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that (i) appropriate notation shall be made on such financial statements to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate that is not a Seller or any other Person, Person that is not a Seller and it will (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP or Requirements of Law, such as in the case of a matter of lawdisregarded entity).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent, in each case, only to the extent sufficient Income is produced from its assets. The foregoing shall in no way be construed as requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate that is not a Seller or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate that is not a Seller or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.Person that is not a Seller;
(l) Seller shall not, without the prior written consent of its Independent Member, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Member;
(n) Seller’s organizational documents shall provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilitiesSeller shall maintain a sufficient number of employees in light of contemplated business operations; provided, contingent or otherwisehowever, other than those normal and incidental that Seller shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than another Seller and as otherwise pledged under the Transaction Documents);
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that appropriate notation shall be made on such financial statements to indicate that Seller’s assets are pledged as collateral for a security agreement) and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for U.S. federal and state income tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent; provided, that the foregoing shall in no way be construed as requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(pl) It has no liabilitiesSeller shall not, contingent or otherwisewithout the prior written consent of its Independent Director, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition take any action that will result in an Act of the Purchased Loans and Portfolio Securities.Insolvency;
(qm) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.Seller shall, at all times, have at least one (1) Independent Director;
(rn) It Seller’s organizational documents shall not maintain any employees.provide (i) that Buyer be given at least two
Appears in 2 contracts
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.), Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent Solvent, and it has paid and will intends to pay its debts and liabilities (including employment and overhead expenses) from and solely to the extent of its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementagreement in all material respects.
(c) It has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax Tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding of which it has Knowledge regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checkschecks and shall allocate fairly and reasonably any overhead for shared office space and for services performed by any employee of its Affiliates.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, servicing, enforcement, financing and disposition of the the Purchased Loans and Portfolio Securities and the any associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreementits organizational documents.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness Indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and Loans, (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, servicing, enforcement, financing and disposing of the the Purchased Loans and Portfolio Securities; providedwhich are either (x) no more than ninety (90) days past due or (y) are being contested in good faith with adequate reserves maintained therefor, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurredand/or (D) as otherwise expressly permitted under this Agreement.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesLoans).
(k) It will intends to maintain adequate capital derived from income from its business operations for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that the foregoing shall not require any shareholder, member or partner of such entity to make any additional capital contributions to such entity.
(l) Neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or mergerSeller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) (i) It has no liabilities, contingent or otherwise, other than those normal will have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Director(s) and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securitiesserves as an “Independent Director” for Seller.
(q) It has conducted and Its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Director, together with the requirements name and contact information of being a Single-Purpose Entitythe replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
(r) It shall not maintain not, without the consent of its Independent Director, take any employeesAct of Insolvency.
Appears in 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Seller shall use only its own assets to pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) from its own assets as ), provided that the same foregoing shall become due.not require any Person to make any capital contribution to Seller;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that appropriate notation shall be made on such consolidated financial statements to indicate that Seller’s assets are pledged as collateral for another security agreement) and any other Person, and it will file its own tax returns (except to the extent consolidation Seller is required under GAAP or treated as a matter “disregarded entity” for tax purposes and is not required to file tax returns under Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes and with respect to consolidated financial statements), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own namename or through a servicer on its behalf, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent, provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
Person (nit being understood that transfers of Seller’s funds to a centralized account payable system utilized by Seller and Guarantor and administered by Manager’s Parent from which Seller’s expenses are paid does not violate or breach this covenant) It has maintained and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and bank accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior written consent of its Independent Director, take any action that is reasonably expected to or is intended to result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Director;
(n) Seller’s organizational documents shall provide that to the extent permitted by Requirements of Law any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilities, contingent or otherwise, Seller shall not pledge its assets to secure the obligations of any other Person (other than those normal and incidental to under the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.Transaction Documents);
(q) It has conducted and Seller shall conduct its business consistent with the requirements of being a Single-Purpose Entity.not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(r) It Seller shall not maintain create, incur, assume or suffer to exist any employeesIndebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred unless subject to a bona fide dispute.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Seven Hills Realty Trust), Master Repurchase Agreement (Tremont Mortgage Trust)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, with respect to each of Seller and Member, that as of the date hereof Closing Date and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller and each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent will remain, Solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller or Member to make any additional capital contributions to Seller or Member.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all limited liability company formalities and to preserve its separate existence.
(d) It has maintained and will maintain all of its books, records, financial statements records and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is Tax returns, if any, which are required under GAAP or as a matter of by applicable law).
(e) It has been, is held itself out and will be, and at all times will hold itself out to the public as, in the case of Master Seller and Member, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationery, invoices and checks, and Master Seller, any Series Seller and Member will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than (i) in the case of Seller, the Purchased Loans, cash and other assets incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans and Portfolio Securities(ii) in the case of Member, cash and its limited liability company interest under any associated Hedging Transactionsin Seller.
(g) It has not engaged and will not engage in any business other than (i) in the case of Seller, the origination, acquisition, reacquisition, ownership, financing hedging, administering, financing, refinancing, and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and (ii) in the Securities Repurchase case of Member, acting as a member of Seller and entering into the Pledge Agreement.
(h) It Except for capital contributions and capital distributions permitted under the terms and conditions of its organizational documents and property reflected on its books and records, it has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates (other than the Transaction Documents), except upon terms and conditions that are intrinsically fair commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (i) in the case of Seller (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing financing, and disposing of the the Purchased Loans and Portfolio SecuritiesEligible Loans; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred, and (ii) in the case of Member, obligations under the Pledge Agreement.
(j) It Except to the extent expressly permitted under this Agreement, it has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination acquisition, financing or acquisition refinancing of Purchased Loans and Portfolio Securities)the Eligible Loans) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller to make any additional capital contributions to Seller.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.
(on) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) Without the affirmative vote of the Independent Manager, it shall not file any insolvency or reorganization case or proceeding, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicing, administration, enforcementhedging, financing and disposition of the Purchased Loans and Portfolio SecuritiesLoans.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business purpose.
(s) Each of Master Seller and Member will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) It has not pledged and will not pledge its assets to secure the obligations of any other Person, except in the case of Member, as contemplated by the Pledge Agreement.
(u) It has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person, except in the case of Member, as contemplated by the Pledge Agreement.
(v) It will not, to the fullest extent permitted by law, (i) engage in any dissolution, liquidation, consolidation, merger, division into two (2) or more limited liability companies or other legal entities, or (ii) engage in any sale or transfer of all or substantially all of its assets, except as expressly contemplated by this Agreement.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity or make any investment in any such Person.
(x) It has maintained and will maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, however, that its assets may have been and may be included in a consolidated financial statement of its Affiliate provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on its own separate balance sheet.
(y) Master Seller has not established and shall not maintain establish, and has not had and shall not have, any employeesseries of limited liability company, except for series that are intended to be and do become Series Sellers pursuant to this Agreement.
(z) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least five (5) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) to the fullest extent permitted by law, and notwithstanding any duty otherwise existing in law or in equity, any Independent Manager of Seller shall consider only the interests of the applicable Seller, including its respective creditors, with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) hereof, and, except for the duties to Seller as set forth in the immediately preceding clause (including duties to Member and Seller’s creditors solely to the extent of their economic interests in Seller, but excluding (A) all other interests of Member, (B) the interests of other Affiliates of Seller, and (C) the interests of any group of Affiliates of which Seller is a part), the Independent Manager shall not have any fiduciary duties to Member, any officer of Seller or any other Person; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. (aa) It will not have its obligations guaranteed other than as contemplated in the Transaction Documents.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documentation.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesCollateral, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’sarm's-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesCollateral; provided, however, that any such trade payables incurred by Seller shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and the Portfolio Securities)) or any other Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or mergermerger with respect to Seller or the Sponsor.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) The Seller shall not take any of the following actions:
(i) permit its shareholders to dissolve or liquidate the Seller, in whole or in part; (ii) consolidate or merge with or into any other entity (where such member is not the surviving entity) or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of the Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesCollateral.
(qr) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(rs) It shall not maintain any employees.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Northstar Realty), Master Repurchase Agreement (Northstar Realty)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will intends to pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.existence as an entity duly organized, validly existing and in good standing under the applicable laws of the jurisdiction of its organization or formation;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans Assets and Portfolio Securities, cash and its interest under any associated Hedging Transactions.rights ancillary thereto;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, administration, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Assets in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (Ai) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (Bii) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (Ciii) unsecured trade payables, in an aggregate amount not to exceed $100,000 400,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination origination, acquisition, ownership or acquisition financing of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It will it 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.;
(l) Neither it nor Guarantor will not seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least five (5) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency with respect to Seller; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Terra Property Trust, Inc.), Master Repurchase Agreement (Terra Secured Income Fund 5, LLC)
Single-Purpose Entity. Each Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof Closing Date and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent Solvent and it has paid and will pay its debts and liabilities (including allocated employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other PersonPerson (except, and it will file its own tax returns (except in each case, to the extent consolidation is required permitted under GAAP or as a matter of law), and, to the extent required by law, it will timely (i) file its own Tax returns, if any (except, for the avoidance of doubt, if such Seller is included as part of a consolidated, unitary, combined or similar tax return and not so obligated to file, or if such Seller is disregarded as a separate entity for applicable tax purposes), and (ii) pay any Taxes required to be paid by it under applicable law.
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate.
(f) It has not owned and will not own any property or any other assets other than (i) Purchased Loans, (ii) Eligible Loans that have received internal credit approval from Buyer to be the subject of a Transaction, but have not yet become Purchased Loans on a Purchase Date, (iii) Purchased Loans that are subject to an early repurchase and Portfolio Securitiesare promptly conveyed to a third party or any Affiliate (including in connection with a securitization transaction), cash and (iv) its interest under any associated Hedging Transactionsthe Transaction Documents, (v) cash, and (vi) all other assets incidental to the organization, acquisition, ownership, financing and disposition of the Purchased Loans.
(g) It has not engaged and will not engage in any business other than the acquisition, origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate and except as specifically contemplated in Section 3(q).
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents Documents, and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 400,000 at any one time outstanding, incurred in the ordinary course of acquiring, originating, owning, financing and disposing of Purchased Loans; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Purchased Loans Transaction Documents, no such value limit shall apply, and Portfolio Securities; provided, however, that (B) any such and all unsecured trade payables incurred by Seller Sellers shall be paid within 30 90 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, except as permitted under this Agreement, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, Control or consolidation or mergermerger with respect to such Seller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It shall at all times maintain at least one Independent Manager. Without the affirmative vote of the Independent Manager, such Seller shall not institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.
(q) It has conducted and shall conduct its business consistent with Eligible Loans pursuant to the requirements of being a Single-Purpose EntityTransaction Documents.
(r) It is formed or organized solely for the purpose of acquiring, originating, owning, financing and disposing of Purchased Loans in accordance with this Agreement, and it does not engage in any business unrelated thereto.
(s) It shall not maintain any employees.
(t) It shall not form any Subsidiaries.
(u) It shall not pledge its assets to secure the obligations of any other Person other than to Buyer pursuant to the Transaction Documents.
Appears in 2 contracts
Sources: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.due (provided, however, nothing in this Article 13 or elsewhere in this Agreement shall be construed to require any direct or indirect owner to make any capital contributions to Seller);
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.Affiliate;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 200,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 ninety (90) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither it nor Guarantor will not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition (ii) provide Buyer with a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 2 contracts
Sources: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.), Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any Transaction hereunder is in effect or any Repurchase Obligations remain outstanding; provided that, without limiting the obligations of Guarantor under the Transaction Documents Guaranty, it is understood that nothing contained in this Section 13 or elsewhere in this Agreement shall remain in effectobligate the direct or indirect owners of Seller to make capital contributions to Seller to enable Seller to meet its obligations under this Agreement:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesaffiliates (that is not a Seller), its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and is, will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing financing, securitizing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and Documents; provided, however, that Seller shall not be in breach of this provision to the Securities Repurchase Agreement.extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing financing, securitizing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It has not made and will not make any loans or advances to any other Person, and it shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets or New Assets which Seller believes in good faith, on the date of origination or acquisition, as applicable, will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It except as otherwise permitted herein, it will not commingle its funds and other assets with those of any of its Affiliates (that is not a Seller) or any other Person.;
(n) It it 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 of its Affiliates (that is not a Seller) or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.Person (that is not a Seller);
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer Purchased Assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (i) Seller does not have any financial liability or obligation under any such asset transfer agreement, and (ii) Guarantor or another Person (other than Seller) agrees to be responsible and liable for the performance of any and all financial obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 2 contracts
Sources: Master Repurchase and Securities Contract Agreement (Colony Credit Real Estate, Inc.), Master Repurchase and Securities Contract Agreement (Colony NorthStar Credit Real Estate, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any Transaction hereunder is in effect or any Repurchase Obligations remain outstanding; provided that, without limiting the obligations of Guarantor under the Transaction Documents Guaranty, it is understood that nothing contained in this Section 13 or elsewhere in this Agreement shall remain in effectobligate the direct or indirect owners of Seller to make capital contributions to Seller to enable Seller to meet its obligations under this Agreement:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesaffiliates (that is not a Seller), its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and is, will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing financing, securitizing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and Documents; provided, however, that Seller shall not be in breach of this provision to the Securities Repurchase Agreement.extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing financing, securitizing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It has not made and will not make any loans or advances to any other Person, and it shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets or New Assets which Seller believes in good faith, on the date of origination or acquisition, as applicable, will become a Purchased Asset, so long as such New Asset is promptly transferred by Seller).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It except as otherwise permitted herein, it will not commingle its funds and other assets with those of any of its Affiliates (that is not a Seller) or any other Person.;
(n) It it 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 of its Affiliates (that is not a Seller) or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.Person (that is not a Seller);
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without ▇▇▇▇▇, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer Purchased Assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (i) Seller does not have any financial liability or obligation under any such asset transfer agreement, and (ii) Guarantor or another Person (other than Seller) agrees to be responsible and liable for the performance of any and all financial obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 2 contracts
Sources: Ninth Omnibus Amendment to Transaction Documents and Release Agreement (BrightSpire Capital, Inc.), Tenth Omnibus Amendment to Transaction Documents (BrightSpire Capital, Inc.)
Single-Purpose Entity. Seller Borrower hereby represents and warrants to Buyer and covenants with BuyerLender that, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate articles of formation and its limited liability company agreementorganization.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under GAAP Income Tax Basis accounting or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans Collateral and Portfolio Securities, cash and its interest under any associated Hedging Transactionsor other assets in connection therewith.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 100,000.00 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesCollateral; provided, however, that any such trade payables incurred by Seller Borrower shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, or consolidation or mergermerger with respect to Borrower.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It shall not take any of the following actions: (i) permit its members to dissolve or liquidate Borrower, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Borrower or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesMortgage Loan.
(qr) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(rs) It shall not maintain hire or engage any employees.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (TNP Strategic Retail Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerPurchaser, that as of the date hereof and for so long as any of the Transaction Documents shall remain in effect:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the assets and transactions specifically contemplated by this Agreement and any other Transaction Document;
(b) Seller shall not make any loans or advances to remain solvent any Affiliate and it has paid and will shall not acquire obligations or securities of its Affiliates;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, its members that (i) appropriate notation shall be made on such financial statements to indicate the separateness of the Seller from such Affiliate and to indicate that the Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, Person and it will (ii) such assets shall also be listed on the Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior unanimous written consent of all of its Independent Managers, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Manager;
(n) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of the Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition Seller shall maintain a sufficient number of the Purchased Loans and Portfolio Securities.employees in light of contemplated business operations;
(q) It has conducted Seller shall use separate invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person;
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than the Liens and security interest granted by Seller pursuant to the Transaction Documents.
Appears in 2 contracts
Sources: Master Repurchase Agreement (RAIT Financial Trust), Master Repurchase Agreement (RAIT Financial Trust)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effect, each Seller covenants that:
(a) It is such Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets and Proposed Assets, its interest under any associated Hedging Transactions and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets and will associated Hedging Transactions;
(b) such Seller shall not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates;
(c) such Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will such Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will such Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, its members that (i) appropriate notation shall be made on such financial statements to indicate the separateness of the Seller from such Affiliate and to indicate that the Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, Person and it will (ii) such assets shall also be listed on the Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP Requirements of Law, or if such Seller is treated as a matter of lawdisregarded from its owner for U.S. federal income or other applicable tax purposes).;
(eg) It has been, is and will such Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for U.S. federal and state income tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent, provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution to such Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will such Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
Person (nother than with the other Seller in accordance with the Transaction Documents) It has maintained and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others, in each case except in accordance with this Agreement;
(j) such Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.Person (other than the other Seller in accordance with the Transaction Documents);
(ok) It has not held and will such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.Person (other than the other Seller in accordance with the Transaction Documents);
(l) such Seller shall not, without the prior unanimous written consent of all of its Independent Managers, take any action that will result in an Act of Insolvency;
(m) such Seller shall, at all times, have at least one (1) Independent Manager;
(n) such Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.[Intentionally Omitted];
(q) It has conducted such Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It such Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than the other Seller in accordance with the Transaction Documents);
(s) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) such Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed $500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred; provided, further, that it is acknowledged, for purposes hereof, “trade payables” shall not include unpaid legal fees and unpaid transaction costs in connection with the execution of this Agreement and the Transaction Documents or the origination or acquisition of any Purchased Asset or the closing of any Transaction under this Agreement.
Appears in 1 contract
Sources: Master Repurchase Agreement (Starwood Credit Real Estate Income Trust)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any Transaction hereunder is in effect or any Repurchase Obligations remain outstanding; provided that, without limiting the obligations of Guarantor under the Transaction Documents Guaranty, it is understood that nothing contained in this Section 13 or elsewhere in this Agreement shall remain in effectobligate the direct or indirect owners of Seller to make capital contributions to Seller to enable Seller to meet its obligations under this Agreement:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and is, will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.; [NEWYORK 3032673_23]
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing financing, securitizing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing financing, securitizing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It except as otherwise permitted herein, it has not made and will not make any loans or advances to any other Person, and it shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It except as otherwise permitted herein, it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing; [NEWYORK 3032673_23]
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer Purchased Assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (i) Seller does not have any financial liability or obligation under any such asset transfer agreement, and (ii) Guarantor, Operating Partnership or another Person (other than Seller) agrees to be responsible and liable for the performance of any and all financial obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income II, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as any of at all times while this Agreement or the Transaction Documents shall remain Loan is in effecteffect and Borrower covenants that:
(a) It is Borrower shall not engage in any business other than with respect to, and intends shall own no assets other than, the Underlying Loan, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Underlying Loan;
(b) Borrower shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to the Underlying Loan or securities consisting of the Underlying Loan;
(c) Borrower shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Borrower shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents in all respects relating to separateness;
(ce) It has done or caused to be done and will do all things necessary to Borrower shall observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Borrower shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of lawRequirements of Law).;
(eg) It has been, is and will Borrower shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes, to the extent permitted by law), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar Borrower intends to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and intends to remain solvent;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Borrower shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
Person (nexcept as may be required under the Underlying Loan Agreement) It has maintained and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Borrower shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Borrower shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Borrower shall not, without the prior written consent of its sole member and Independent Member, take any action that will result in an Act of Insolvency;
(m) Borrower shall, at all times, have at least one (1) Independent Member;
(n) Borrower’s organizational documents shall provide (i) that Class A Lender be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Borrower shall not have any fiduciary duty to anyone including the holders of the equity interest in Borrower and any Affiliates of Borrower except Borrower and the creditors of Borrower with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Borrower shall not enter into any transaction with an Affiliate of Borrower except (i) on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction or (ii) in connection with the Loan, this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.[Reserved];
(q) It has conducted Borrower shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Borrower shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than under the Loan Documents);
(s) Borrower shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Borrower shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Underlying Loan, or the other Collateral, whether now owned or hereafter acquired, other than Permitted Debt. Nothing in this Article 12 shall require any direct or indirect owners of Borrower to contribute capital to Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent Solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from and solely to the extent of its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its organizational documents (i.e. certificate of formation and its limited liability company operating agreement) in all material respects.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other PersonPerson (except, and it will file its own tax returns (except in each case, to the extent consolidation is required permitted under GAAP or as a matter of law), and, to the extent required by law, it will file its own tax returns, if any (except, for the avoidance of doubt, if the Seller is included as part of a consolidated, unitary, combined or similar tax return, or if the Seller is disregarded as a separate entity for applicable tax purposes).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding of which it has Actual Knowledge regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the acquisition, origination, acquisitionownership, ownershipservicing, enforcement, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreementits organizational documents.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under with respect to the Transaction Documents Purchased Loan Documents, and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred payables in the ordinary course of acquiringits business which are either (x) no more than ninety (90) days past due and do not exceed $500,000.00 in the aggregate or (y) more than ninety (90) days past due and do not exceed $250,000.00 in the aggregate, owningand are being contested in good faith and for which adequate reserves are maintained, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred(C) as otherwise expressly permitted under this Agreement.
(j) It has not made and will not make any loans or advances to any other Person, except as permitted under this Agreement, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital derived from income from its business operations for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, Control or consolidation or mergermerger with respect to Seller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It Except as expressly permitted under this Agreement, it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to Seller shall not take any Act of Insolvency without the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition affirmative vote of the Purchased Loans and Portfolio SecuritiesIndependent Director.
(q) It has conducted and shall conduct its business consistent with at all times maintain at least one Independent Director. For so long as the requirements Repurchase Obligations remain outstanding, Seller shall not take any of being a Single-Purpose Entitythe actions contemplated by Section 13(p) above (including, to the extent, applicable without the affirmative vote of such Independent Director).
(r) It shall not maintain pledge its assets to secure the obligations of any employeesother Person.
Appears in 1 contract
Sources: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof Closing Date, the Amendment and Restatement Date and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all material limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns Tax returns, if any, which are required by law (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has beenwill, is and will be, and at all times will hold itself out to the public as, in the case of Master Seller, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationery, invoices and checks, and Master Seller or any Series Seller will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets including New Collateral incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, hedging, administering, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions or New Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing and disposing of the the Eligible Loans or New Collateral, and (C) contingent or future funding obligations under any Purchased Loans and Portfolio SecuritiesLoan; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurredinvoiced.
(j) It has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased the Eligible Loans and Portfolio Securities)or New Collateral) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.
(on) It Except as contemplated under the Transaction Documents, it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) It shall not take any of the following actions without the affirmative vote of the Independent Manager: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in an external written communication to third parties its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicing, administration, enforcementhedging, financing and disposition of the Purchased Loans and Portfolio Securitiesor New Collateral.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has not and shall not maintain any employees.
(s) Master Seller will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) It has not pledged and will not pledge its assets to secure the obligations of any other Person (other than as contemplated by this Agreement with respect to any Master Seller or Series Seller).
(u) It has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person (other than as contemplated by this Agreement with respect to any Master Seller or Series Seller).
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than the Master Seller with respect to any Series Seller).
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
Appears in 1 contract
Sources: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent Solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from and solely to the extent of its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its organizational documents (i.e. certificate of formation and its limited liability company operating agreement) in all material respects.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other PersonPerson (except, and it will file its own tax returns (except in each case, to the extent consolidation is required permitted under GAAP or as a matter of law), and, to the extent required by law, it will file its own tax returns, if any (except, for the avoidance of doubt, if the Seller is included as part of a consolidated, unitary, combined or similar tax return, or if the Seller is disregarded as a separate entity for applicable tax purposes).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding of which it has Actual Knowledge regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the acquisition, origination, acquisitionownership, ownershipservicing, enforcement, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreementits organizational documents.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness Indebtedness or other obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under with respect to the Transaction Documents Purchased Loan Documents, and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred payables in the ordinary course of acquiringits business which are either (x) no more than ninety (90) days past due and do not exceed $500,000.00 in the aggregate or (y) more than ninety (90) days past due and do not exceed $250,000.00 in the aggregate, owningand are being contested in good faith and for which adequate reserves are maintained, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred(C) as otherwise expressly permitted under this Agreement.
(j) It has not made and will not make any loans or advances to any other Person, except as permitted under this Agreement, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital derived from income from its business operations for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, Control or consolidation or mergermerger with respect to Seller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to Seller shall not take any Act of Insolvency without the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition affirmative vote of the Purchased Loans and Portfolio SecuritiesIndependent Director.
(q) It has conducted and shall conduct its business consistent with at all times maintain at least one Independent Director. For so long as the requirements Repurchase Obligations remain outstanding, Seller shall not take any of being a Single-Purpose Entitythe actions contemplated by Section 13(p) above (including, to the extent, applicable without the affirmative vote of such Independent Director).
(r) It shall not maintain pledge its assets to secure the obligations of any employeesother Person.
Appears in 1 contract
Sources: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Purchaser, and covenants with BuyerPurchaser, that as of the date hereof and for so long as any of the Transaction Documents shall remain in effect:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the assets and transactions specifically contemplated by this Agreement and any other Transaction Document;
(b) Seller shall not make any loans or advances to remain solvent any Affiliate or third party and it has paid and will shall not acquire obligations or securities of its Affiliates;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, its members that (i) appropriate notation shall be made on such financial statements to indicate the separateness of the Seller from such Affiliate and to indicate that the Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, Person and it will (ii) such assets shall also be listed on the Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior unanimous written consent of all of its Independent Managers, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Manager;
(n) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of the Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition Seller shall maintain a sufficient number of the Purchased Loans and Portfolio Securities.employees in light of contemplated business operations;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and (t) allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person; and
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity.
Appears in 1 contract
Sources: Master Repurchase Agreement (NewStar Financial, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Purchaser, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of law).Requirements of Law;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent; provided that the foregoing shall not require any member, partner or shareholder of Seller to make additional capital contributions to Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior written consent of its Independent Member, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Member;
(n) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilitiesSeller shall maintain a sufficient number of employees in light of contemplated business operations; provided, contingent or otherwisehowever, other than those normal and incidental that Seller shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees;
(q) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.Intentionally omitted;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person;
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof Closing Date, the Amendment and Restatement Date and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all material limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns Tax returns, if any, which are required by law (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has beenwill, is and will be, and at all times will hold itself out to the public as, in the case of Master Seller, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationery, invoices and checks, and Master Seller or any Series Seller will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets including New Collateral incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, hedging, administering, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions or New Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing and disposing of the the Eligible Loans or New Collateral, and (C) contingent or future funding obligations under any Purchased Loans and Portfolio SecuritiesLoan; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurredinvoiced.
(j) It has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased the Eligible Loans and Portfolio Securities)or New Collateral) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.
(on) It Except as contemplated under the Transaction Documents, it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) It shall not take any of the following actions without the affirmative vote of the Independent Manager:
(i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in an external written communication to third parties its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicing, administration, enforcementhedging, financing and disposition of the Purchased Loans and Portfolio Securitiesor New Collateral.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has not and shall not maintain any employees.
(s) Master Seller will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) It has not pledged and will not pledge its assets to secure the obligations of any other Person (other than as contemplated by this Agreement with respect to any Master Seller or Series Seller).
(u) It has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person (other than as contemplated by this Agreement with respect to any Master Seller or Series Seller).
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than the Master Seller with respect to any Series Seller).
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
Appears in 1 contract
Sources: Master Repurchase Agreement
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns Tax returns, if any, which are required by law (except to the extent consolidation is required or permitted under GAAP or as a matter of law).. Master Repurchase Agreement Resource Capital 51
(e) It has beenwill, is and will be, and at all times will hold itself out to the public as, in the case of Master Seller, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationerystationary, invoices and checks, and Master Seller or any Series Seller will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, reacquisition, ownership, financing hedging, administering, financing, refinancing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesEligible Loans; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.
(j) It has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination acquisition, financing or acquisition refinancing of Purchased Loans and Portfolio Securities)the Eligible Loans) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.. Master Repurchase Agreement Resource Capital 52
(on) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) It shall not take any of the following actions without the affirmative vote of the Independent Manager: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicing, administration, enforcementhedging, financing and disposition of the Purchased Loans and Portfolio SecuritiesLoans.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has not and shall not maintain any employees.
(s) Master Seller will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) It has not pledged and will not pledge its assets to secure the obligations of any other Person.
(u) It has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person.
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity. Master Repurchase Agreement Resource Capital 53
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
Appears in 1 contract
Sources: Master Repurchase Agreement (Resource Capital Corp.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesCollateral, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the Repurchase Agreement ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesCollateral; provided, however, that any such trade payables incurred by Seller shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member shareholder or affiliate any Affiliate of any member shareholder or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or mergermerger with respect to Seller or the Sponsor.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) The Seller shall not take any of the following actions: (i) permit its shareholders to dissolve or liquidate the Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of the Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesCollateral.
(qr) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(rs) It shall not maintain any employees.. Repurchase Agreement $250MM Facility
Appears in 1 contract
Sources: Master Repurchase Agreement (CBRE Realty Finance Inc)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effect:effect and Seller covenants that: 4931-3517-6718v.7
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that appropriate notation shall be made on such financial statements to indicate that Seller’s assets are pledged as collateral for a security agreement) and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for U.S. federal and state income tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent; provided, that the foregoing shall in no way be construed as requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.; 4931-3517-6718v.7
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior written consent of its Independent Director, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Director;
(n) Seller’s organizational documents shall provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the name and contact information of the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (ii) that any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilitiesSeller shall maintain a sufficient number of employees in light of contemplated business operations; provided, contingent or otherwisehowever, other than those normal and incidental that Seller shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employees.other Person (other than under the Transaction Documents);
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred. 4931-3517-6718v.7
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Administrative Agent and Buyers, and covenants with BuyerAdministrative Agent and ▇▇▇▇▇▇, that that, on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed Two Hundred Thousand Dollars and No/100 Dollars ($100,000 200,000.00) at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it 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 the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contribution to Seller;
(l) Neither neither it nor Guarantor will seek its (A) the dissolution, liquidation liquidation, Division or winding up, in whole or in part, part of Seller or suffer any Change (B) the division of Control, consolidation Seller into two (2) or merger.more limited liability companies or other legal entities;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Administrative Agent with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without ▇▇▇▇▇, (ii) Administrative Agent be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any Subsidiaries (other than with respect to an REO Asset) or employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Fortress Credit Realty Income Trust)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Purchaser, and covenants with BuyerPurchaser, that as of the Closing Date, the date hereof and for so long as any of the Transaction Documents shall remain in effect:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the assets and transactions specifically contemplated by this Agreement and any other Transaction Document;
(b) Seller shall not make any loans or advances to remain solvent any Affiliate or third party and it has paid and will shall not acquire obligations or securities of its Affiliates;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, its members that (i) appropriate notation shall be made on such financial statements to indicate the separateness of the Seller from such Affiliate and to indicate that the Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, Person and it will (ii) such assets shall also be listed on the Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior unanimous written consent of all of its Independent Managers, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Manager;
(n) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of the Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition Seller shall maintain a sufficient number of the Purchased Loans and Portfolio Securities.employees in light of contemplated business operations;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and (t) allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person; and
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity.
Appears in 1 contract
Sources: Master Repurchase Agreement (NewStar Financial, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 200,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither it nor Guarantor will not seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Single-Purpose Entity. Each Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof A&R Closing Date and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent Solvent and it has paid and will pay its debts and liabilities (including allocated employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other PersonPerson (except, and it will file its own tax returns (except in each case, to the extent consolidation is required permitted under GAAP or as a matter of law), and, to the extent required by law, it will timely (i) file its own Tax returns, if any (except, for the avoidance of doubt, if such Seller is included as part of a consolidated, unitary, combined or similar tax return and not so obligated to file, or if such Seller is disregarded as a separate entity for applicable tax purposes), and (ii) pay any Taxes required to be paid by it under applicable law.
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate.
(f) It has not owned and will not own any property or any other assets other than (i) Purchased Loans, (ii) Eligible Loans that have received internal credit approval from Buyer to be the subject of a Transaction, but have not yet become Purchased Loans on a Purchase Date, (iii) Purchased Loans that are subject to an early repurchase and Portfolio Securitiesare promptly conveyed to a third party or any Affiliate (including in connection with a securitization transaction), cash and (iv) its interest under any associated Hedging Transactionsthe Transaction Documents, (v) cash, and (vi) all other assets incidental to the organization, acquisition, ownership, financing and disposition of the Purchased Loans.
(g) It has not engaged and will not engage in any business other than the acquisition, origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate and except as specifically contemplated in Section 3(q).
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents Documents, and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 400,000 at any one time outstanding, incurred in the ordinary course of acquiring, originating, owning, financing and disposing of Purchased Loans; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Purchased Loans Transaction Documents, no such value limit shall apply, and Portfolio Securities; provided, however, that (B) any such and all unsecured trade payables incurred by Seller Sellers shall be paid within 30 90 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, except as permitted under this Agreement, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, Control or consolidation or mergermerger with respect to such Seller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It shall at all times maintain at least one Independent Manager. Without the affirmative vote of the Independent Manager, such Seller shall not institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.
(q) It has conducted and shall conduct its business consistent with Eligible Loans pursuant to the requirements of being a Single-Purpose EntityTransaction Documents.
(r) It is formed or organized solely for the purpose of acquiring, originating, owning, financing and disposing of Purchased Loans in accordance with this Agreement, and it does not engage in any business unrelated thereto.
(s) It shall not maintain any employees.
(t) It shall not form any Subsidiaries.
(u) It shall not pledge its assets to secure the obligations of any other Person other than to Buyer pursuant to the Transaction Documents.
Appears in 1 contract
Sources: Master Repurchase Agreement (KKR Real Estate Finance Trust Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It Seller shall own no assets, and shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to the origination, acquisition, ownership, financing, securitization and disposition of the Purchased Assets; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates an Eligible Asset under its good faith belief that such Eligible Asset will become a Purchased Asset; provided, further, that in the event Buyer does not approve such Eligible Asset for inclusion in a Transaction, then Seller shall convey all of its right, title and interest in such Eligible Asset to a third party by not later than ten (10) Business Days after Buyer disapproves (or is deemed to have disapproved) such Eligible Asset;
(b) Seller shall not make any loans or advances to any Affiliate or third party and intends shall not acquire obligations or securities of its Affiliates other than those obligations related to remain solvent and it has paid and Purchased Assets or securities consisting of Purchased Assets or Eligible Assets which Seller believes in good faith will become a Purchased Asset;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates that are not a Seller (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that (i) appropriate notation shall be made on such financial statements to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate that is not a Seller or any other Person, Person that is not a Seller and it will (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under GAAP or Requirements of Law, such as in the case of a matter of lawdisregarded entity).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It 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.4866-0343-1908v.212 operations and shall remain solvent, in each case, only to the extent sufficient Income is produced from its assets. The foregoing shall in no way be construed as requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate that is not a Seller or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate that is not a Seller or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.Person that is not a Seller;
(l) Seller shall not, without the prior written consent of its Independent Member, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Member;
(n) Seller’s organizational documents shall provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilitiesSeller shall maintain a sufficient number of employees in light of contemplated business operations; provided, contingent or otherwisehowever, other than those normal and incidental that Seller shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than another Seller and as otherwise pledged under the Transaction Documents);
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and 4866-0343-1908v.212
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: Master Repurchase Agreement (BrightSpire Capital, Inc.)
Single-Purpose Entity. Seller (a) Borrower hereby represents with respect to Borrower 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 never owned any property other than the Collateral and has never engaged in any business other than the ownership and servicing of the Collateral; and
(iii) has no material contingent or actual obligations not related to the Collateral.
(b) Borrower hereby represents from the date of such entity’s formation to the date of this Agreement that it:
(i) has not owned any asset or property other than the Collateral;
(ii) has not engaged in any business other than the ownership and servicing of the Collateral;
(iii) has not entered into any transaction, 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 (i) for voluntary capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, or (ii) upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;
(iv) has paid all of its debts and liabilities from its assets;
(v) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;
(vi) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person;
(vii) has not had its assets listed as assets on the financial statement of any other Person;
(viii) 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);
(ix) 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);
(x) has corrected any known misunderstanding regarding its status as a separate entity;
(xi) has conducted all of its business and held all of its assets in its own name;
(xii) has not identified itself or any of its affiliates as a division or part of the other;
(xiii) has not commingled its assets with those of any other Person and has held all of its assets in its own name;
(xiv) has not guaranteed or become obligated for the debts of any other Person;
(xv) has not held itself out as being responsible for the debts or obligations of any other Person;
(xvi) 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;
(xvii) has not pledged its assets to secure the obligations of any other Person;
(xviii) has maintained adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operation;
(xix) has maintained a sufficient number of employees (if any) in light of its contemplated business operations and has paid the salaries of its own employees (if any) from its own funds;
(xx) has not owned any subsidiary or any equity interest in any other entity;
(xxi) has not incurred any indebtedness that is still outstanding other than Permitted Indebtedness; and
(xxii) has not had any of its obligations guaranteed by an Affiliate.
(c) Borrower hereby represents and warrants to Buyer to, and covenants with Buyer, that as of the date hereof and so long until such time as any of the Transaction Documents Debt shall remain be paid in effectfull:
(ai) It Borrower does not own and will not own any asset or property other than the Collateral;
(ii) Borrower does not and will not engage in any business other than the ownership and servicing of the Collateral and Borrower will conduct and operate its business as presently conducted and operated;
(iii) Except for voluntary capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, Borrower will not enter into any transaction, 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, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with third parties;
(iv) Borrower will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), except for Permitted Indebtedness;
(v) Borrower will not make any loans to any third party (including any Affiliate or constituent party), and shall not acquire obligations or securities of its Affiliates;
(vi) Borrower is and intends to will remain solvent and it has paid and Borrower will pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) from its own assets as the same shall become due.; provided, that, in each such case, there exists and is made available to Borrower sufficient cash flow from the Collateral to do so and that the foregoing shall not require any partners, members or other owners of Borrower to make any capital contributions to Borrower;
(bvii) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.
(c) It has done or caused to be done and Borrower will do all things necessary to observe limited liability company organizational formalities and to preserve its separate existence., and Borrower will not, nor will Borrower permit any constituent party to, amend, modify or otherwise change the partnership certificate, partnership agreement, operating agreement, trust or other organizational documents of Borrower without the prior consent of Agent in any manner that (A) violates the covenants set forth in this Section 7.10 or (B) 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 Agent’s consent;
(dviii) It has maintained and Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates and any constituent party. Borrower’s assets will not be listed as assets on the financial statement of any other Person, provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and it will file its 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 (B) such assets shall be listed on Borrower’s own tax returns (except to the extent consolidation is required under GAAP or as a matter of law).separate balance sheet;
(eix) It has been, is and Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Borrower or any constituent party of Borrower), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.other;
(fx) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(lxi) Neither it Borrower nor Guarantor any constituent party will seek its or effect the liquidation, dissolution, liquidation or winding up, liquidation, division into two (2) or more limited liability companies or other legal entities, consolidation or merger, in whole or in part, of Borrower or suffer any Change transfer, sell or otherwise dispose of Control, consolidation all or merger.substantially all of its assets;
(mxii) It Borrower will not commingle its the funds and other assets of Borrower with those of any of its Affiliates Affiliate or constituent party or any other Person., and will hold all of its assets in its own name;
(nxiii) It Borrower 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 of its Affiliates Affiliate or constituent party or any other Person.;
(oxiv) It has Borrower will not held guarantee or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person;
(xv) Borrower will not permit any Affiliate or constituent party independent access to its bank accounts;
(xvi) Borrower will pay the salaries of its own employees (if any) from its own funds and maintain a sufficient number of employees (if any) in light of its contemplated business operations;
(xvii) Borrower will 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;
(xviii) Borrower will file its own Tax returns separate from those of any other Person, except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and is not required to file Tax returns under applicable law, and pay any Taxes required to be paid under applicable law;
(xix) Borrower will allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including for shared office space and for services performed by an employee of an affiliate;
(xx) Borrower will not pledge its assets to secure the obligations of any other Person;
(xxi) Borrower will not buy or hold evidence of Indebtedness issued by any other Person (other than cash or investment-grade securities); and
(xxii) Borrower will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(pd) It If Borrower is a single member limited liability company, Borrower shall have at least one springing member, which, upon the occurrence of any event that causes the sole member to cease to be a member of Borrower (other than (i) upon an assignment by the sole member of all of its limited liability company interest in Borrower and the admission of the transferee pursuant to the terms of Borrower’s organizational documents and this Agreement, or (ii) the resignation of the sole member and the admission of an additional member of Borrower pursuant to the terms of ▇▇▇▇▇▇▇▇’s organizational documents and this Agreement) (a “Member Cessation Event”), shall, without any action of any Person and simultaneously with the Member Cessation Event, automatically be admitted to Borrower as the sole member of Borrower, that has no liabilitiesinterest in the profits, contingent or otherwise, other than those normal losses and incidental capital of Borrower and has no right to the acquisition, origination, ownership, servicing, administration, enforcement, financing receive any distributions of Borrower assets and disposition of the Purchased Loans and Portfolio Securitiesshall continue Borrower without dissolution.
(qe) It Borrower shall at all times cause there to be at least one (1) duly appointed Independent Director of ▇▇▇▇▇▇▇▇. No Independent Director shall be removed or replaced without Cause and no removal or replacement of an Independent Director shall be effective unless (i) Borrower provides Agent with at least five (5) Business Days’ notice of such removal or replacement and (ii) a successor Independent Director is appointed and such successor shall have accepted his or her appointment as an Independent Director by executing a counterpart to the limited liability company agreement of Borrower. The term “Independent Director” means an individual who has conducted prior experience as an independent director, independent manager or independent member with at least three (3) years of employment experience and shall conduct who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors, another nationally-recognized company reasonably approved by Agent, in each case that is not an Affiliate of Borrower and that provides professional Independent Directors and other corporate services in the ordinary course of its business consistent with business, and which individual is duly appointed as an Independent Director, and is not, and has never been, and will not while serving as Independent Director be, any of the requirements of being a Single-Purpose Entity.
(r) It shall not maintain any employees.following:
Appears in 1 contract
Sources: Loan and Security Agreement (AB Commercial Real Estate Private Debt Fund, LLC)
Single-Purpose Entity. Seller hereby represents and warrants to the Buyer Parties, and covenants with Buyerthe Buyer Parties, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) 13.1 It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) 13.2 It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.
(c) 13.3 It has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.
(d) 13.4 It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation that it is a tax-disregarded entity not required to file tax returns under GAAP applicable law and its assets will not be included on any financial statement of any of its Affiliates); provided, however, that it may permit its assets to be included in a consolidated financial statement of its Affiliate; provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of it from such Affiliate and to indicate that its assets and credit are not available to satisfy the debts and other obligations of such Affiliate or as a matter of law)any other Person and (ii) such assets shall also be listed on its own separate balance sheet.
(e) 13.5 It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checkschecks bearing its own name, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) 13.6 It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging TransactionsAgreements.
(g) 13.7 It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Assets in accordance with the applicable provisions of the Transaction Documents Documents.
13.8 Other than capital contributions and distributions permitted under its organizational documents and the Securities Repurchase Agreement.
(h) It Transaction Documents, and transactions otherwise contemplated by the Transaction Documents, it has not entered into, and will not enter intointo any transaction, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair commercially reasonable and substantially similar to those that would be available on an arm’sarm's-length basis with Persons other than such affiliateAffiliate.
(i) 13.9 It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than than, to the extent permitted under the Transaction Documents, (Ai) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (Cii) unsecured trade payables, in an aggregate amount not to exceed $100,000 1,000,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 thirty (30) days of the date incurred.
(j) 13.10 It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of the Purchased Loans and Portfolio Securities)Assets) or any other Person.
(k) 13.11 It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) 13.12 Neither it nor Guarantor its sole member will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or mergermerger with respect to Seller or the Sponsor.
(m) 13.13 It will not commingle its funds and or other assets with those of any of its Affiliates or any other Person.
(n) 13.14 It 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 of its Affiliates or any other Person.
(o) 13.15 It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
13.16 Seller shall not permit its sole member to take any of the following actions with respect to Seller: (pi) dissolve or liquidate, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such member or Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; (iv) amend the certificate of formation or limited liability company agreement of Seller; (v) enter into any transaction with an Affiliate not in the ordinary course of Seller's business; or (vi) withdraw as the sole member of Seller.
13.17 It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesAssets.
(q) 13.18 It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(r) 13.19 It shall maintain a sufficient number of employees in light of its contemplated business operations, provided that such number may be zero.
13.20 It shall not maintain pledge its assets to secure the obligations of any employeesother Person, other than the Buyer Agent, for the benefit of the Buyers.
13.21 It shall not guarantee or become obligated for the debts of any other Person.
13.22 It shall not form, acquire or hold any subsidiary, or own any equity interest in any other entity except interests that are part of the Purchased Assets (or assets which are proposed to become Purchased Assets) or that are acquired in any foreclosure on, or other realization of collateral from, any of the Purchased Assets that is a mezzanine loan.
Appears in 1 contract
Sources: Master Repurchase Agreement (Anthracite Capital Inc)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerSELLER HEREBY REPRESENTS AND WARRANTS TO BUYER AND COVENANTS WITH BUYER THAT, that as of the date hereof and so long as any of the Transaction Documents shall remain in effectON AND AS OF THE DATE OF THIS AGREEMENT AND EACH PURCHASE DATE AND AT ALL TIMES WHILE THIS AGREEMENT AND ANY TRANSACTION THEREUNDER IS IN EFFECT OR ANY REPURCHASE OBLIGATIONS REMAIN OUTSTANDING:
(a) It is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.
(c) It has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 200,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or mergerSeller.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) It has no liabilities, contingent or otherwise, other than those normal will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securitiesserves as an Independent Director for Seller.
(q) It has conducted and Its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entitythe replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
(r) It shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(s) It shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (LoanCore Realty Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and Borrower represents, warrants to Buyer and covenants as follows:
(a) The purpose for which the Borrower is organized shall be limited solely to (A) owning, holding, selling, leasing, transferring, exchanging, operating and managing the Property, (B) entering into the Note, this Security Instrument and the Other Security Documents with Buyerthe Lender, (C) refinancing the Property in connection with a permitted repayment of the Debt, and (D) transacting any and all lawful business for which a Borrower may be organized under its constitutive law that is incident, necessary and appropriate to accomplish the foregoing.
(b) Borrower does not own and will not own any asset or property other than (i) the Property, (ii) incidental personal property necessary for and used or to be used in connection with the ownership or operation of the Property, and (iii) the proceeds, rents, issues and profits thereof.
(c) Borrower will not engage in any business other than the ownership, management and operation of the Property.
(d) Borrower will not enter into any contract or agreement with any affiliate of the Borrower, any constituent party of Borrower, any owner of the Borrower, or any affiliate of any constituent party, except upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arms-length basis with third parties not affiliated with the Borrower or its constituent party.
(e) Borrower has not incurred (which is still outstanding) and will not incur any indebtedness other than (i) the Debt, (ii) trade payables incurred in the ordinary course of its business of owning and operating the Property (including, but not limited to, amounts currently payable by or on behalf of Borrower to suppliers, contractors, mechanics, vendors, materialmen or other persons providing property or services to Borrower or the Property, or in connection with the ownership, management, operation, leasing, cleaning, maintenance, repair, replacement, improvement, alteration or restoration of the Property), which are not more than sixty (60) days past the date due and do not in the aggregate exceed $1,000,000.00, with trade creditors and in amounts as are normal and reasonable under the circumstances, provided such debt is not evidenced by a note, (iii) indebtedness incurred in the ordinary course of business in the financing of equipment and other personal property used on the Property requiring payments, in the aggregate, of less than $100,000 per year, (iv) indebtedness incurred with respect to the Property pursuant to that certain Real Estate Retention Agreement, dated July 20, 1992, by and among Vornado, Inc. (as predecessor to Vornado Realty Trust), Keen Realty Consultants, Inc., Alexander's Inc. and such other subsidiaries of Alexander's Inc., as assumed by Borrower pursuant to that certain Assignment and Assumption of Contracts, dated the date hereof between Alexander's Rego ▇▇▇k Center, Inc. and Borrower, which indebtedness is equal to approximately $1,200,000.00 as of the date hereof and so long will not increase as a result of any activities of Alexander's Inc. or its subsidiaries with respect to any property other than the Property; provided, however such indebtedness shall only be payable after the payment of debt service on the Loan and all other expenses incurred in connection with the operation of the Transaction Documents shall remain Property and (v) indebtedness incurred in effect:connection with the management of the Property pursuant to that certain Management Agreement, dated May __, 1999, between Borrower and Vornado Management Corp. No indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property.
(af) It Borrower has not made and will not make any loans or advances to any entity or person (including any affiliate or constituent party, or any affiliate of any constituent party), and shall not acquire obligations or securities of its affiliates or any constituent party; provided, however, that Borrower shall be permitted to make loans to unaffiliated tenants under Leases if such loans are made in the ordinary course of business and the proceeds of such loans are used solely for the purpose of making the demised premises at the Property ready for occupancy by such tenant or to pay for other costs relating to such tenant's leasing of space in the Property.
(g) Borrower is and intends to will remain solvent and it has paid and Borrower will pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) from its own assets as prior to the same shall become dueexpiration of any applicable grace or extension periods.
(bh) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.
(c) It Borrower has done or caused to be done and will do all things necessary to observe limited liability company organizational formalities and to preserve its existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower or such constituent party in any way which will violate the covenants contained in this Section 4.3, without the prior written consent of Lender.
(di) It has maintained and Borrower will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members affiliates and any constituent party. Borrower's assets will not be listed as assets on the financial statement of any other Personentity, except as required by generally accepted accounting principles. Borrower will not file a consolidated federal income tax return except with Alexander's, Inc. and its consolidated subsidiaries and if Borrower does not file a consolidated tax return it will file its own tax returns (except to the extent consolidation is required under GAAP or return. Borrower shall maintain its books, records, resolutions and agreements as a matter of law)official records.
(ej) It has been, is and Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliateaffiliate of Borrower, any constituent party of Borrower, or any affiliate of any constituent party), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it Borrower nor Guarantor any constituent party will seek its the dissolution, liquidation or winding up, liquidation, consolidation or merger in whole or in part, or suffer any Change the sale of Controlmaterial assets of the Borrower (except in connection with the payment in full of the Debt and the release of the lien hereof in accordance with the terms and conditions of the Note, consolidation or mergerthis Security Instrument and the Other Security Documents).
(m) It Borrower will not commingle the funds of Borrower with those of any affiliate or constituent party, or any affiliate of any constituent party, or any other person, and will not participate in any cash management system with any such party.
(n) Borrower will not commingle its funds and other assets with those of any of its Affiliates other person or any other Person.
(n) It has maintained entity and will maintain hold all of 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 of its Affiliates or any other Personown name.
(o) It has Borrower will not held guarantee or become obligated for the debts of any other entity or person and does not and will not hold itself out to be as being responsible for the debts or obligations of any other Personperson.
(p) It Borrower shall at all times cause there to be at least one duly appointed member of the board of directors (an "INDEPENDENT DIRECTOR") of Borrower reasonably satisfactory to Lender who is not at the time of initial appointment and has no liabilitiesnot been at any time during the preceding five (5) years, contingent and shall not be at any time while serving as a director of the corporation: (a) a stockholder, director, officer, employee, partner, member, attorney or otherwisecounsel of Borrower or any affiliate; (b) a customer, supplier or other person who derives any of its purchases or revenues from its activities with Borrower or any affiliate, other than those normal a person as to whom the corporation or any affiliate pays reasonable and incidental to customary compensation or fees solely for acting as an Independent Director, process agent and for the acquisitionprovision of general corporate structuring and incorporation services; (c) a person or other entity controlling or under common control with any such stockholder, originationpartner, ownershipmember, servicingcustomer, administration, enforcement, financing and disposition supplier or other person; or (d) a member of the Purchased Loans and Portfolio Securitiesimmediate family of any such stockholder, director, officer, employee, partner, member, customer, supplier or other person. (As used herein, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(q) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(r) It shall not maintain any employees.)
Appears in 1 contract
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Administrative Agent and Buyers and covenants with BuyerAdministrative Agent and Buyers that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.; LEGAL_US_E # 160815361.8
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.existence as an entity duly organized, validly existing and in good standing under the applicable laws of the jurisdiction of its organization or formation;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans Assets and Portfolio Securities, cash and its interest under any associated Hedging Transactions.cash;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Assets in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (Ai) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (Bii) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (Ciii) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither it nor Guarantor will not seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.; LEGAL_US_E # 160815361.8
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Administrative Agent with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Administrative Agent be given at least five (5) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns Tax returns, if any, which are required by law (except to the extent consolidation is required or permitted under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, hedging, administering, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount (for Master Seller and each Series Seller, collectively) not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesEligible Loans; provided, however, that any such trade payables incurred by Seller shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)the Eligible Loans) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates or any other Person.
(on) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(o) It shall not take any of the following actions without the affirmative vote of the Independent Director: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicing, administration, enforcementhedging, financing and disposition of the Purchased Loans and Portfolio SecuritiesLoans.
(q) It is an entity disregarded as a separate entity or treated as a partnership for federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for federal income tax purposes.
(r) It has not and shall not maintain any employees.
(i) It will have at all times at least one (1) Independent Director and (ii) provide Buyer with up-to-date contact information for all Independent Director(s) and a copy of the agreement pursuant to which each Independent Director consents to and serves as an “Independent Director” for Seller.
(t) It has not pledged and will not pledge its assets to secure the obligations of any other Person.
(u) It has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person.
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Director, together with the name and contact information of the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing.
Appears in 1 contract
Sources: Master Repurchase Agreement (LoanCore Realty Trust, Inc.)
Single-Purpose Entity. Seller hereby represents At all times during the term of this Agreement, Borrowers represent, warrant, covenant and warrants agree to Buyer ensure at all times that each Borrower operates and covenants with Buyermaintains its status as an independent entity, that as of the date hereof separate and so long as any of the Transaction Documents shall remain in effectdistinct from all other entities, that:
(a) It is each Borrower shall own no property or assets, other than the portion of the Land owned by such Borrower, the Improvements thereon, leases thereof, contract rights relating thereto, and intends to remain solvent other personal and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as intangible property used or useful solely in connection with the same shall become due.portion of the Project owned by such Borrower;
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.Borrowers shall not enter into any agreement to provide services to any third party;
(c) It has done or caused Borrowers' Organizational Documents shall limit its purpose to be done owning, operating, managing, improving, leasing, selling, mortgaging, financing, refinancing and will maintaining the Projects and other lawful activities incidental thereto; provided that in the event Borrowers' Organizational Documents do all things necessary not so provide, Borrowers shall have thirty (30) days following the Initial Disbursement to observe limited liability company formalities and to preserve its existence.so modify Borrowers' Organizational Documents;
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), Borrowers shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business or activity other than the originationacquisition, acquisitionconstruction, ownership, financing and disposition operation or maintenance of the the Purchased Loans Projects, and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other lawful activities incidental thereto;
(he) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and Borrowers shall not acquire obligations or securities of own any member or affiliate of any member or any other Person (material asset other than in connection with the origination or acquisition Projects and incidental personal property as may be necessary for the operation of Purchased Loans and Portfolio Securities).the Projects;
(kf) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will seek its dissolutionBorrowers shall not merge into or consolidate with any Person or dissolve, liquidation terminate or winding upliquidate, in whole or in part, transfer or suffer any Change otherwise dispose of Controlall or substantially all of its assets or change its legal structure, consolidation or merger.without in each case Lender's consent;
(mg) It will Borrowers shall not commingle its funds and other assets with those own any subsidiary or make any investment in or acquire the obligations or securities of any of its Affiliates or any other Person.;
(nh) It has maintained and will maintain Borrowers shall not co-mingle its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual with the assets from those of any of its Affiliates or any other Person.;
(oi) It has Borrowers shall not held fail to pay its debts and will liabilities from its own assets or funds available from the Loan;
(j) Borrowers shall not fail to correct any known misunderstandings regarding the separate identity of its member or managers;
(k) Borrowers shall not hold itself out to be responsible for the debts of another Person;
(l) Borrowers shall maintain books and records and bank accounts separate from those of any other Person;
(m) Borrowers shall maintain its assets in such a manner that is not costly or difficult to segregate, identify or ascertain such assets;
(n) Borrowers shall hold regular entity meetings, as appropriate, to conduct its business and observe all other appropriate entity formalities;
(o) Borrowers shall hold itself out to creditors and the public as a legal entity separate and distinct from any other Person;
(p) Borrowers shall prepare separate tax returns and financial statements, or if part of a consolidated group, then it will be shown as a separate member of such group;
(q) Borrowers shall allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates; and
(r) Borrowers shall not assume, guarantee, or pay the debts or obligations of any other Person.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.
(q) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(r) It shall not maintain any employees.
Appears in 1 contract
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long at all times while this Agreement or any Transaction hereunder is in effect and each Seller Counterparty (as any of the Transaction Documents shall remain in effectto itself) covenants that:
(a) It is No Seller Counterparty shall own assets or engage in any business, other than the Purchased Assets, Contributed Swingline Loans, proposed Purchased Assets and intends Purchased Assets or Contributed Swingline Loans, as applicable, reacquired by any Seller from Purchaser, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Each Seller Counterparty shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Contributed Swingline Loans, Purchased Assets or securities consisting of Purchased Assets or Contributed Swingline Loans, as applicable;
(c) Each Seller Counterparty shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Each Seller Counterparty shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Each Seller Counterparty shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Each Seller Counterparty shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of law).Requirements of Law;
(eg) It has been, is and will Each Seller Counterparty shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Each Seller Counterparty shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent; provided that the foregoing shall not require any member, partner or shareholder of the Seller Counterparty to make additional capital contributions to the Seller Counterparty;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will not No Seller Counterparty shall commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will each Seller Counterparty shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Each Seller Counterparty shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will not No Seller Counterparty shall hold itself out to be responsible for the debts or obligations of any other Person.;
(l) No Seller Counterparty shall, without the prior written consent of the Independent Member of Seller, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Member;
(n) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in a Seller Counterparty and any Affiliates of the Seller Counterparties except the Seller Counterparties and the creditors of the Seller Counterparties with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) No Seller Counterparty shall enter into any transaction with an Affiliate of Seller Counterparty except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has Each Seller Counterparty shall maintain a sufficient number of employees in light of contemplated business operations; provided, however, that no liabilities, contingent or otherwise, other than those normal and incidental Seller Counterparty shall be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.
(q) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(r) It shall not maintain any employees.;
Appears in 1 contract
Sources: Master Repurchase Agreement (Granite Point Mortgage Trust Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Administrative Agent and Buyers, and covenants with BuyerAdministrative Agent and Buyers, that that, on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.agreement necessary to maintain its separate existence;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It except for capital contributions and capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed Two Hundred and Fifty Thousand Dollars ($100,000 250,000) at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its (A) the dissolution, liquidation liquidation, Division or winding up, in whole or in part, part of Seller or suffer any Change (B) the division of Control, consolidation Seller into two (2) or merger.more limited liability companies or other legal entities;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Administrative Agent with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Administrative Agent be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any Subsidiaries or employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (ACRES Commercial Realty Corp.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under GAAP or as a matter of law).. Repurchase Agreement $400MM Facility
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesLoans; provided, however, that any such trade payables incurred by Seller shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member shareholder or affiliate any Affiliate of any member shareholder or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities)Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or mergermerger with respect to Seller or the Sponsor.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person. Repurchase Agreement $400MM Facility
(p) The Seller shall not take any of the following actions: (i) permit its shareholders to dissolve or liquidate the Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of the Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(pq) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesLoans.
(qr) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(rs) It shall not maintain any employees.
Appears in 1 contract
Sources: Master Repurchase Agreement (CBRE Realty Finance Inc)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will will, to the maximum extent permitted by applicable law, pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation incorporation and its limited liability company agreement.memorandum and articles of association;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and and, to the maximum extent permitted by applicable law, to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.other;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.; provided, however, that Seller shall not be in breach of this provision to the extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as Seller complies with Section 12(u) hereof;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and Documents; provided, however, that Seller shall not be in breach of this provision to the Securities Repurchase Agreement.extent that Seller acquires or originates a New Asset under its good faith belief, on such date of acquisition or origination, as applicable, that such New Asset will become a Purchased Asset, so long as Seller complies with Section 12(u) hereof;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 200,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It has not made and will not make any loans or advances to any other Person, and it shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets or New Assets which Seller believes in good faith, on the date of origination or acquisition, as applicable, will become a Purchased Asset, so long as Seller complies with Section 12(u) hereof).;
(k) It it 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 the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(l) Neither neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted its organizational documents (being its memorandum and articles of association) shall provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least five (5) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the name and contact information of the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director, (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall be subject to applicable law and shall conduct not eliminate the implied contractual covenant of good faith and fair dealing and any Independent Director of Seller shall not be required to make such determination unless (a) Seller has, at its business consistent own expense, retained counsel, accountants or other experts to advise the Independent Director with respect thereto, and (b) the requirements Independent Director shall be entitled to rely conclusively upon the advice of being a Single-Purpose Entity.such counsel, accountants and other experts and shall have no liability for its failure to follow the instructions of the beneficial owners or any other person;
(r) It it shall not, without the unanimous written consent of its board of directors including the Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (TPG RE Finance Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as any of the Transaction Documents shall remain in effect:
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe limited liability company corporate formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates, its members and any other Person, and it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and other, shall maintain and utilize separate stationery, invoices and checks, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesCollateral, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesCollateral; provided, however, that any such trade payables incurred by Seller shall be paid within 30 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination or acquisition of the Purchased Loans and Portfolio Securities)) or any other Person.
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(l) Neither it nor Guarantor will It shall not seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or mergermerger with respect to Seller or the Sponsor.
(m) It will not commingle its funds and other assets with those of any of its Affiliates or any other Person.
(n) It 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 of its Affiliates or any other Person.
(o) It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.
(p) Seller shall not take any of the following actions: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(q) It has no liabilities, contingent or otherwise, other than those normal and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio SecuritiesCollateral.
(qr) It has conducted and shall conduct its business consistent with the requirements of being a Single-Purpose Entity.
(rs) It shall not maintain any employees.
Appears in 1 contract
Sources: Master Repurchase Agreement (Resource Capital Corp.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Buyer, and covenants with Buyer, that as of the date hereof and so long as this Agreement or any of the Transaction Documents shall remain in effect:effect (for purposes hereof, all references to the term “Seller” in this Section 12 shall be deemed to mean and refer to Master Seller together with each Series Seller which is a party to this Agreement as of the applicable date):
(a) It is and intends to remain solvent and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller to make any additional capital contributions to Seller.
(b) It has complied and will comply with the provisions of its certificate of formation and its limited liability company agreementorganizational documents.
(c) It has done or caused to be done and will will, to the extent under its control, do all things necessary to observe all material limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliatesAffiliates that are not a Seller, its members and any other PersonPerson that is not a Seller, and it Master Seller will file its own tax returns consolidated Tax returns, if any, which are required by applicable law (except to the extent consolidation between Master Seller and Series Sellers is not required or permitted under GAAP or as a matter of law (such as in the case of a disregarded entity), or to the extent that consolidation with any of Seller’s Affiliates, its members, or any other Person is required or permitted under GAAP or as a matter of law).
(e) It has beenwill, is and will be, and at all times will hold itself out to the public as, in the case of Master Seller, a legal entity separate and distinct from any other entity (including any Affiliate), shall and, in the case of any Series Seller, distinct from any other entity (including any Affiliate, Master Seller or any other Series), it will correct any known misunderstanding regarding its status as a separate entitysuch status, shall it will conduct business in its own name, shall it will not identify itself or any of its Affiliates as a division or part of the other and shall (except any Series Seller may refer to itself as a “series” of Master Seller), it will maintain and utilize separate stationerystationary, invoices and checks, and Master Seller or any Series Seller will pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesLoans, cash and its interest under any associated Hedging Transactionsother assets including New Collateral incidental to the origination, acquisition, ownership, hedging, administering, financing and disposition of Purchased Loans.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, reacquisition, ownership, financing hedging, administering, financing, refinancing, securitizing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions or New Collateral in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase AgreementDocuments.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliatesAffiliates (other than the Transaction Documents), except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliateAffiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 the Seller Threshold at any one time outstanding, incurred in the ordinary course of originating, acquiring, owning, financing financing, securitizing and disposing of the the Purchased Eligible Loans and Portfolio Securitiesor New Collateral; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurredinvoiced.
(j) It Except to the extent expressly permitted under this Agreement, it has not made and will not make any loans or advances (other than Eligible Loans) to any other Person, and shall not acquire obligations or securities of any member or affiliate any Affiliate of any member or any other Person (other than in connection with the origination acquisition, financing or acquisition refinancing of Purchased the Eligible Loans and Portfolio Securities)or New Collateral) or any other Person.
(k) It will has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, that nothing contained in this Section 12 or otherwise in this Agreement shall require any direct or indirect owners of Seller to make any additional capital contributions to Seller.
(l) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It has not commingled and will not commingle its funds and other assets with those of any of its Affiliates that are not a Seller or any other PersonPerson (except with Master Seller and other Series Sellers as contemplated under Section 5 hereof).
(nm) It 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 of its Affiliates that are not a Seller or any other PersonPerson (except with Master Seller and other Series Sellers).
(on) It Except as contemplated under the Transaction Documents, it has not held and will not hold itself out to be responsible for the debts or obligations of any other PersonPerson (except with Master Seller and other Series Sellers).
(o) It shall not take any of the following actions without the affirmative vote of the Independent Manager: (i) permit its members to dissolve or liquidate Seller, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Laws, or effect any similar procedure under any similar law, or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Seller or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing in a legal proceeding its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing.
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental to the origination, acquisition, origination, ownership, servicinghedging, administrationfinancing, enforcement, financing securitizing and disposition of the Purchased Loans and Portfolio Securitiesor New Collateral.
(q) It is an entity disregarded as a separate entity or treated as a partnership for U.S. federal income tax purposes and has conducted and shall conduct its business consistent with not made any election under Section 301.7701-3(a) of the requirements of being Treasury Regulations to be treated as an association taxable as a Single-Purpose Entitycorporation for U.S. federal income tax purposes.
(r) It has not and shall not maintain any employees.
(s) Master Seller will have at all times at least one (1) Independent Manager and will provide Buyer with up-to-date contact information for all Independent Manager(s) and a copy of the agreement pursuant to which each Independent Manager consents to and serves as an “Independent Manager” for Master Seller and each Series Seller.
(t) Except as contemplated under the Transaction Documents, it has not pledged and will not pledge its assets to secure the obligations of any other Person (other than Master Seller or any Series Seller).
(u) Except as contemplated under the Transaction Documents, it has not and will not guarantee any obligation of any Person, including any Affiliate or become obligated for the debts of any other Person or hold out its credit as being available to pay the obligations of any other Person (other than Master Seller or any Series Seller).
(v) It will not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets.
(w) It will not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than any Series Seller).
(x) The Master Seller LLC Agreement shall provide that (i) no Independent Manager of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of the Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (iii) any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any of the actions contemplated by Section 12(o) above; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (i) prior to entering into any such asset transfer agreement, Buyer shall have reviewed such asset transfer agreement and confirmed that Seller does not have any liability or obligation under any such asset transfer agreement, and (ii) either (A) one or more Guarantors or (B) another Person other than Seller agrees to be responsible and liable for the performance of any and all obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 1 contract
Sources: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as any of at all times while this Agreement or the Transaction Documents shall remain Loan is in effecteffect and Borrower covenants that:
(a) It is Borrower shall not engage in any business other than with respect to, and intends shall own no assets other than, the Underlying Loan, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Underlying Loan;
(b) Borrower shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to the Underlying Loan or securities consisting of the Underlying Loan;
(c) Borrower shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Borrower shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents in all respects relating to separateness;
(ce) It has done or caused to be done and will do all things necessary to Borrower shall observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Borrower shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of lawRequirements of Law).;
(eg) It has been, is and will Borrower shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes, to the extent permitted by law), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar Borrower intends to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and intends to remain solvent;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Borrower shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
Person (nexcept as may be required under the Underlying Loan Agreement) It has maintained and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Borrower shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Borrower shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Borrower shall not, without the prior written consent of its sole member and Independent Member, take any action that will result in an Act of Insolvency;
(m) Borrower shall, at all times, have at least one (1) Independent Member;
(n) Borrower’s organizational documents shall provide (i) that Class A Lender be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Borrower shall not have any fiduciary duty to anyone including the holders of the equity interest in Borrower and any Affiliates of Borrower except Borrower and the creditors of Borrower with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Borrower shall not enter into any transaction with an Affiliate of Borrower except
(i) on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction or (ii) in connection with the Loan, this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby;
(p) It has no liabilities, contingent or otherwise, other than those normal and incidental Borrower shall maintain a sufficient number of employees in light of contemplated business operations (provided that Borrower shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees);
(q) It has conducted Borrower shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Borrower shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than under the Loan Documents);
(s) Borrower shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Borrower shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Underlying Loan, or the other Collateral, whether now owned or hereafter acquired, other than Permitted Debt. Nothing in this Article 12 shall require any direct or indirect owners of Borrower to contribute capital to Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Cim Real Estate Finance Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Administrative Agent and Buyers and covenants with BuyerAdministrative Agent and Buyers that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.; 77 LEGAL_US_E # 160815361.8
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.existence as an entity duly organized, validly existing and in good standing under the applicable laws of the jurisdiction of its organization or formation;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans Assets and Portfolio Securities, cash and its interest under any associated Hedging Transactions.cash;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions Assets in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (Ai) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (Bii) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (Ciii) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither it nor Guarantor will not seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.; LEGAL_US_E # 160815361.8
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Administrative Agent with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Administrative Agent be given at least five (5) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Claros Mortgage Trust, Inc.)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.due (although nothing in this clause (a) shall require any constituent member of Seller to make any capital or other contributions to Seller);
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It will it intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations (although nothing in this clause (k) shall require any constituent member of Seller to make any capital or other contributions to Seller);
(l) Neither neither it nor Guarantor nor Pledgor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without Cause, (ii) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, voluntarily institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to or collude with any petitioning creditors in connection with the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in a legal proceeding its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (Resource Capital Corp.)
Single-Purpose Entity. Seller hereby represents and warrants This Section 12 is being adopted in order to Buyer and covenants comply with Buyer, that certain provisions required in order to qualify the Company as of the date hereof and so long as any of the Transaction Documents shall remain in effecta “special purpose entity”:
(a) It Notwithstanding any other provision of this Agreement or any other document governing the formation, management. or operation of the Company and notwithstanding any provision of law that otherwise so empowers the Company, the Member shall not, and neither shall the Company, until such time as the Obligations (other than Obligations that by their express terms survive full repayment of the Loan) shall be paid and performed in full, amend, alter, change or repeal the definition of “Independent Manager” or Sections 3, 4, 5, 7, 8, 11, 12, 13, 14, 15, 22, and 23, or Exhibit A of this Agreement (to the extent that the terms defined in Exhibit A are used in any of the foregoing sections) (the “Special Purpose Provisions”), or any other provision of this or any other document governing the formation, management or operation of the Company in a manner that is inconsistent with any of the Special Purpose Provisions, unless the Lender consents in writing. Subject to this Section 12(a), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 10. In the event of any conflict between any of the Special Purpose Provisions and any other provisions of this or any other document governing the formation, management or operation of the Company, the Special Purpose Provisions shall control.
(b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Managing Member or any other Person, until such time as the Obligations (other than Obligations that by their express terms survive full repayment of the Loan) shall be paid and performed in full, neither the Managing Member nor any other Person shall be authorized or empowered on behalf of the Company to, nor shall they permit the Company to, and the Company shall not, without the prior unanimous written consent of the Managing Member and all Independent Managers, take any Material Action with respect to the Company, provided, however, that, until such time as the Obligations (other than Obligations that by their express terms survive full repayment of the Loan) shall be paid and performed in full, the Managing Member may not authorize the taking of any Material Action with respect to the Company or with respect to any Borrower, unless there is at least one Independent Manager of the Company then serving in such capacity and all Independent Managers have consented to such action.
(c) The Managing Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises. The Managing Member shall also do, have done or cause to be done all things necessary to ensure the Company:
(i) has not been, is not, and will not be engaged, in any business unrelated to in the case of the Company, the acquisition, development, ownership, management or operation of the Business Property;
(ii) has not had, does not have, and will not have, any assets other than those related to the Business Property;
(iii) has been, is and intends to remain solvent and it has paid and will shall pay its debts and liabilities from its then available assets (including employment a fairly-allocated portion of any personnel and overhead expensesexpenses that it shares with any Affiliate) from its own assets as the same shall become due.
(b) It has complied , and will comply with the provisions of its certificate of formation and its limited liability company agreement.
(c) It has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.
(d) It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required under GAAP or as a matter of law).
(e) It has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It 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.;
(liv) Neither it nor Guarantor has not failed, and will seek its dissolutionnot fail, liquidation or winding up, in whole or in part, or suffer to correct any Change known misunderstanding regarding the separate identity of Control, consolidation or merger.such entity and has not and shall not identify itself as a division of any other Person;
(mv) It has maintained and will maintain its accounts, books and records separate from any other Person and has filed and will file its own tax returns, except to the extent that it has been or is required to file consolidated tax returns by law;
(vi) has maintained and will maintain its own records, books, resolutions and agreements;
(vii) has not (i) commingled, and will not commingle commingle, its funds and other or assets with those of any other Person and (ii) participated and will not participate in any cash management system with any Person other than Lender;
(viii) has held and will hold its assets in its own name;
(ix) has conducted and shall conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of itself or of the Company, except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;
(x) has maintained and will maintain its Affiliates books, bank accounts, balance sheets, financial statements, accounting records and other entity documents separate from any other Person and has not permitted, and will not permit, its assets to be listed as assets on the financial statement of any other entity except as required by generally accepted accounting principles in the United States of America (or such other accounting basis as is approved in writing by Lender); provided, however, that appropriate notation shall be made on any such consolidated statements to indicate its separateness from such Affiliate and to indicate that its assets and credit are not available to satisfy the debt and Other obligations of such Affiliate or any other Person.Person and such assets shall be listed on its own separate balance sheet;
(nxi) It has paid and will pay its own liabilities and expenses, including the salaries of its own employees, out of its own funds and assets, and has maintained and will maintain a sufficient number of employees in light of its contemplated business operations;
(xii) has observed and will observe all limited liability company formalities;
(xiii) has had no and will have no indebtedness (including loans, whether or not such loans are evidenced by a written agreement) other than (i) the Loan, (ii) unsecured trade and operational debt incurred in the ordinary course of business relating to the ownership and operation of the Business Property and the routine administration of the Company, in amounts not to exceed one percent (5%) of the original principal amount of the Loan, in the aggregate, which liabilities are not more than sixty (60) days past the date incurred, are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are permitted pursuant to the Basic Documents;
(xiv) has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become obligated for, the debts of any other Person and has not held out and will not hold out its credit as being available to satisfy the obligations of any other Person except as permitted pursuant to the Basic Documents;
(xv) has not acquired and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate;
(xvi) has allocated and will allocate, fairly and reasonably, any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate;
(xvii) has maintained and used, now maintains and uses, and will maintain and use, separate stationery, invoices and checks bearing its own name;
(xviii) except pursuant to the Basic Documents, has not pledged and will not pledge its assets for the benefit of any other Person;
(xix) has held itself out and identified itself, and will hold itself out and identify itself, as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of the Company and not as a division or part of any other Person;
(xx) 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 of its Affiliates or any other Person.;
(oxxi) It has not held made and will not make loans to any Person or hold itself out evidence of indebtedness issued by any other Person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to be responsible for the debts common ownership with such entity);
(xxii) has not identified and will not identify its partners, members or obligations shareholders, or any Affiliate of any of them, as a division or part of it, and has not. identified itself, and shall not identify itself, as a division of any other Person.;
(pxxiii) It has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except (i) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no liabilitiesless favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party, contingent or otherwise, and (ii) in connection with the Basic Documents;
(xxiv) other than capital contributions and distributions permitted under the terms of its organizational documents, has not entered into or been a party to, and shall not enter into or be a party to, any transaction with any of its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are commercially reasonable terms comparable to those normal of an arm’s length transaction with an unrelated third party;
(xxv) has not had and incidental shall not have any obligation to, and has not indemnified and shall not indemnify its partners, officers, directors or members, as the case may be, in each case unless such an obligation or indemnification is fully subordinated to the acquisitionLoan and shall not constitute a claim against it in the event that its cash flow is insufficient to pay the Loan;
(xxvi) does not and will not have any of its obligations guaranteed by any Affiliate except as provided in the Basic Documents;
(xxvii) does not and will not (a) dissolve, originationmerge, ownershipliquidate, servicingconsolidate, administration, enforcement, financing (b) sell all or substantially all of its assets or (c) amend its organizational documents with respect to the matters set forth in this Section 12 without the consent of Lender;
(xxviii) has complied and disposition will comply with all of the Purchased Loans terms and Portfolio Securities.provisions contained in this Agreement, the Certificate of Formation and any other organizational documents of the Company and has caused and will cause statements of facts contained in such documents to be and to remain true and correct; and
(qxxix) It has conducted not permitted and shall conduct not permit any Affiliate or constituent party independent access to its business consistent with the requirements of being a Single-Purpose Entitybank accounts.
(r) It shall not maintain any employees.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Mountain Falls, LLC)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer Administrative Agent and Buyers, and covenants with BuyerAdministrative Agent and ▇▇▇▇▇▇, that that, on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any of the Transaction Documents shall hereunder is in effect or any Repurchase Obligations remain in effectoutstanding:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any AffiliateAffiliate of Seller), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C) unsecured trade payables, in an aggregate amount not to exceed One Hundred Thousand Dollars ($100,000 100,000,000) at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It it has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (in each case other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its (A) the dissolution, liquidation liquidation, Division or winding up, in whole or in part, part of Seller or suffer any Change (B) the division of Control, consolidation Seller into two (2) or merger.more limited liability companies or other legal entities;
(m) It it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (i) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (ii) provide Administrative Agent with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (i) no Independent Director of Seller may be removed or replaced without ▇▇▇▇▇, (ii) Administrative Agent be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (iii) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any Subsidiaries or employees.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Single-Purpose Entity. Seller hereby represents On and warrants to Buyer and covenants with Buyer, that as of the date hereof and so long as at all times while this Agreement or any of the Transaction Documents shall remain hereunder is in effecteffect and Seller covenants that:
(a) It is Seller shall own no assets, and intends shall not engage in any business, other than the Purchased Assets, proposed Purchased Assets, its interest under any associated Hedging Transactions, and Purchased Assets reacquired by Seller from Buyer, and other assets incidental to remain solvent the origination, acquisition, ownership, financing and it has paid disposition of the Purchased Assets;
(b) Seller shall not make any loans or advances to any Affiliate or third party and will shall not acquire obligations or securities of its Affiliates other than those obligations related to Purchased Assets or securities consisting of Purchased Assets;
(c) Seller shall pay its debts and liabilities (including employment including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due.assets;
(bd) It has complied and will Seller shall comply with the provisions of its certificate of formation and its limited liability company agreement.organizational documents;
(ce) It has done or caused to be done and will Seller shall do all things necessary to observe limited liability company its organizational formalities and to preserve its existence.;
(df) It has maintained and will Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members Affiliates (except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law; provided that appropriate notation shall be made on such financial statements to indicate that Seller’s assets are pledged as collateral for a security agreement) and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter Requirements of lawLaw).;
(eg) It has been, is and will Seller shall be, and at all times will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for U.S. federal and state income tax purposes), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks.
(f) It has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio Securities, cash and its interest under any associated Hedging Transactions.
(g) It has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing and disposition of the the Purchased Loans and Portfolio Securities and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.other;
(h) It has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with Persons other than such affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Transaction Documents and the Securities Repurchase Agreement, (B) obligations under the documents evidencing the Purchased Loans and Portfolio Securities and (C) unsecured trade payables, in an aggregate amount not to exceed $100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the the Purchased Loans and Portfolio Securities; provided, however, that any such trade payables incurred by Seller shall be paid within 30 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio Securities).
(k) It will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.operations and shall remain solvent; provided, that the foregoing shall in no way be construed as requiring the contribution of capital to Seller by any direct or indirect holders of interests in Seller;
(li) Neither it nor Guarantor will seek its dissolution, liquidation or winding up, in whole or in part, or suffer any Change of Control, consolidation or merger.
(m) It will Seller shall not commingle its funds and or other assets with those of any of its Affiliates Affiliate or any other Person.
(n) It has maintained Person and will shall maintain its properties and assets in such a manner that it will would not be costly or difficult to segregateidentify, segregate or ascertain or identify its individual properties and assets from those of others;
(j) Seller shall maintain its properties, assets and accounts separate from those of any of its Affiliates Affiliate or any other Person.;
(ok) It has not held and will Seller shall not hold itself out to be responsible for the debts or obligations of any other Person.;
(l) Seller shall not, without the prior written consent of its Independent Member, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Member;
(n) Seller’s organizational documents shall provide (i) that Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Member, together with the name and contact information of the replacement Independent Member and evidence of the replacement’s satisfaction of the definition of Independent Member and (ii) that any Independent Member of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) It has no liabilitiesSeller shall maintain a sufficient number of employees in light of contemplated business operations; provided, contingent or otherwisehowever, other than those normal and incidental that Seller shall not be required to the acquisition, origination, ownership, servicing, administration, enforcement, financing and disposition of the Purchased Loans and Portfolio Securities.maintain any employees;
(q) It has conducted Seller shall use separate stationary, invoices and shall conduct checks bearing its business consistent with the requirements own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of being a Single-Purpose Entity.an Affiliate;
(r) It Seller shall not maintain pledge its assets to secure the obligations of any employeesother Person (other than under the Transaction Documents);
(s) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(t) Seller shall not create, incur, assume or suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (i) obligations under the Transaction Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables, in an aggregate amount not to exceed the Seller Threshold at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: Master Repurchase Agreement (AB Commercial Real Estate Private Debt Fund, LLC)
Single-Purpose Entity. Seller hereby represents and warrants to Buyer and covenants with BuyerBuyer that, that on and as of the date hereof of this Agreement and so long as each Purchase Date and at all times while this Agreement and any Transaction hereunder is in effect or any Repurchase Obligations remain outstanding; provided that, without limiting the obligations of Guarantor under the Transaction Documents Guaranty, it is understood that nothing contained in this Section 13 or elsewhere in this Agreement shall remain in effectobligate the direct or indirect owners of Seller to make capital contributions to Seller to enable Seller to meet its obligations under this Agreement:
(a) It it is and intends to remain solvent solvent, and it has paid and will pay its debts and liabilities (including employment and overhead expenses) from its own assets as the same shall become due.;
(b) It it has complied and will comply with the provisions of its certificate of formation and its limited liability company agreement.;
(c) It it has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.;
(d) It it has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its affiliates, its members and any other Person, and it will file its own tax returns (except to the extent consolidation is required or permitted under GAAP or as a matter of law).;
(e) It it has been, is and is, will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), it shall correct any known misunderstanding regarding its status as a separate entity, it shall conduct business in its own name, it shall not identify itself or any of its Affiliates as a division or part of the other and it shall maintain and utilize separate stationery, invoices and checks.;
(f) It it has not owned and will not own any property or any other assets other than the Purchased Loans and Portfolio SecuritiesAssets, cash and its interest under any associated Hedging Transactions.;
(g) It it has not engaged and will not engage in any business other than the origination, acquisition, ownership, financing financing, securitizing and disposition of the the Purchased Loans and Portfolio Securities Assets and the associated Hedging Transactions in accordance with the applicable provisions of the Transaction Documents and the Securities Repurchase Agreement.Documents;
(h) It it has not entered into, and will not enter into, any contract or agreement with any of its affiliates, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-arm’s length basis with Persons other than such affiliate.;
(i) It it has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A1) obligations under the Transaction Documents and the Securities Repurchase AgreementDocuments, (B1) obligations under the documents evidencing the Purchased Loans and Portfolio Securities Assets, and (C1) unsecured trade payables, in an aggregate amount not to exceed $100,000 500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing financing, securitizing and disposing of the the Purchased Loans and Portfolio SecuritiesAssets; provided, however, that any such trade payables incurred by Seller shall be paid within 30 sixty (60) days of the date incurred.;
(j) It except as otherwise permitted herein, it has not made and will not make any loans or advances to any other Person, and it shall not acquire obligations or securities of any member or affiliate of any member or any other Person (other than in connection with the origination or acquisition of Purchased Loans and Portfolio SecuritiesAssets).;
(k) It it will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.;
(l) Neither neither it nor Guarantor will seek its the dissolution, liquidation or winding up, in whole or in part, or suffer any Change part of Control, consolidation or merger.Seller;
(m) It except as otherwise permitted herein, it will not commingle its funds and other assets with those of any of its Affiliates or any other Person.;
(n) It it 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 of its Affiliates or any other Person.;
(o) It it has not held and will not hold itself out to be responsible for the debts or obligations of any other Person.;
(p) It has no liabilities, contingent or otherwise, other than those normal it will (1) have at all times at least one (1) Independent Director and incidental to the acquisition, origination, ownership, servicing, administration, enforcement, financing (1) provide Buyer with up-to-date contact information for all Independent Directors and disposition a copy of the Purchased Loans agreement pursuant to which each Independent Director consents to and Portfolio Securities.serves as an Independent Director for Seller;
(q) It has conducted and its organizational documents shall conduct its business consistent provide that (1) no Independent Director of Seller may be removed or replaced without Cause, (1) Buyer be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Director, together with the requirements name and contact information of being a Single-Purpose Entity.the replacement Independent Director and evidence of the replacement’s satisfaction of the definition of Independent Director and (1) any Independent Director of Seller shall not have any fiduciary duty to anyone including the holders of the equity interests in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(r) It it shall not, without the consent of its Independent Directors, institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of it or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take any action in furtherance of any of the foregoing; and
(s) it shall not maintain have any employees. Notwithstanding anything to the contrary contained herein or in any other Transaction Document, so long as this Agreement shall remain in effect, Seller may enter into one or more asset transfer agreements to transfer Purchased Assets to a securitization seller, depositor, trust, issuer or other similar Person; provided that (1) Seller does not have any financial liability or obligation under any such asset transfer agreement, and (1) Guarantor, Operating Partnership or another Person (other than Seller) agrees to be responsible and liable for the performance of any and all financial obligations of Seller under any such asset transfer agreement or arising in connection therewith.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (NorthStar Real Estate Income Trust, Inc.)