Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full: (a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property. (b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated. (c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated third party. (d) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property. (e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates. (f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due. (g) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documents. (h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records. (i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name. (j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. (k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business. (l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name. (m) 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 Affiliate or constituent party or any other Person. (n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. (o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing. (p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower. (q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower. (r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower. (s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts. (t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations. (u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred. (v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due. (w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates. (x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space. (y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person. (z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation. (aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion. (bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions. (cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate. (dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person. (ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities). (ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 3 contracts
Sources: Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding three percent (3%) of the Outstanding Principal Balance at any one time; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided that the foregoing shall not create an obligation on the part of any direct or indirect member, partner, shareholder, beneficiary or other beneficial interest holder in Borrower, or any officer, director, employee, trustee, beneficiary or Affiliate of any of the foregoing to make capital contributions, equity infusions or loans to Borrower.
(g) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents and (iiiiv) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, the Rating Agencies have issued a Rating Agency Confirmation in connection therewith, Borrower will not amend, modify or otherwise change its organizational documents Organizational Documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documents.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such B) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other (except as required under Acceptable Accounting Basis with respect to a disregarded entity for tax purposes) and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor 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 create an obligation on the part of any direct or indirect member, partner, shareholder, beneficiary or other beneficial interest holder in Borrower, or any officer, director, employee, trustee, beneficiary or Affiliate of any of the foregoing to make capital contributions, equity infusions or loans to Borrower.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents Organizational Documents of Borrower shall provide that the business and affairs of Borrower will not shall be managed by Sole Member and at all times shall have at least one (1) Independent Director designated by Sole Member. As used herein, the term “Independent Director” shall refer to a duly appointed individual, who has at least three (3) years prior employment experience and Borrower agrees continues to be employed as an independent director, independent manager or independent member by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Wilmington Trust National Association, Wilmington Trust SP Services, Inc., ▇▇▇▇▇▇▇ Management Company, Lord Securities Corporation or, if none of those companies is then providing professional independent directors, independent managers and independent members, another nationally-recognized company that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, provides such services and which is reasonably approved by Lender; (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resignis not, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolvedhas never been, and its affairs shall be wound upwill not, only upon the first to occur while serving as an Independent Director be, any of the following: (A) a director, manager, officer, employee, partner, member, attorney or counsel of Borrower, any Affiliate of Borrower any direct or indirect equity holder of any of them, (B) a creditor, supplier, service provider (including provider of professional services) to Borrower or any Affiliate of Borrower (other than a nationally-recognized company that routinely provides professional independent directors, independent managers or independent members and other corporate services to Borrower or any Affiliate of Borrower in the termination ordinary course of its business), (C) a member of the legal existence immediate family of any such director, manager, officer, employee, partner, member, creditor, supplier, service provider or other Person, or (D) a Person Controlling or under common Control with any of the last remaining Persons described in clause (A), (B) or (C) above. A natural person who satisfies the foregoing definition other than clause (ii) shall not be disqualified as a result of clause (ii)(A) by reason of (I) being, having been or becoming an Independent Director of an Affiliate of Borrower that is not in the direct chain of ownership of Borrower or Sole Member and that is required by a creditor to be a “single purpose entity”; provided that such Independent Director is, was or will be employed by a company that routinely provides professional independent directors, independent managers or independent members, or (II) being, having been or becoming a member of Borrower or pursuant to an express provision in Borrower’s operating agreement providing for the occurrence appointment of any other event which terminates the continued membership of the last remaining such Independent Director as a member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower pursuant to cease to be a member of Borrower or that causes which Sole Member to cease ceases to be a member of Borrower (including the withdrawal or dissolution of Sole Member). A natural person who satisfies the foregoing definition other than clause (Aii) upon shall not be disqualified as a result of clause (ii)(A) or (ii)(B) by reason of being, having been or becoming an assignment Independent Director of a “single purpose entity” affiliated with Borrower; provided that the fees or other compensation that such individual earns by Sole Member serving as an Independent Director of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents one or more Affiliates of Borrower and in any given year constitute, in the Loan Documentsaggregate, or less than five percent (B5%) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents such individual’s income for such year. The Organizational Documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative shall provide that no Independent Director of such last remaining member shall Borrower may be authorized toremoved or replaced without Cause, and shall, within ninety unless Borrower provides Lender with not less than three (903) days after the occurrence Business Days’ prior notice of the event that terminated the continued membership of such member in Borrower, agree in writing (1) any proposed removal of any Independent Director, together with a statement as to continue the existence of Borrowerreasons for such removal, and (2) to the admission identity of the personal representative or its nominee or designeeproposed replacement Independent Director, as together with a certification that such replacement satisfies the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, requirements set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties Organizational Documents of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to an Independent Director. In addition, the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents Organizational Documents of Borrower shall provide an express acknowledgment that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all Lender is an intended third-party beneficiary of the assets “special purpose” and “separateness” provisions of such Organizational Documents. As used in this paragraph, the term “single purpose entity” shall mean a Person whose Organizational Documents contain, and who covenants that such Person shall comply or properties of any other Person; or (iii) engage in any other business activitycause compliance with, or amend its organizational documents with respect provisions substantially similar to any of the matters those set forth in this Section 3.13, without the prior consent of Lender in its sole discretion3.1.24.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 2 contracts
Sources: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal and intangible property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, development, ownership, operating, leasing, management management, maintenance, holding, selling and operation of otherwise dealing with the Property and entering into the Loan, and activities incidental thereto and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, Taxes and Other Charges, (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $500,000.00 at any one time (not including trade payables Borrower is contesting in good faith up to an aggregate amount of $250,000.00 and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $150,000.00 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not more than sixty (60) days past due and (y) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party)) but provided that this shall not prohibit tenant allowances pursuant to Leases permitted under this Agreement, and has not acquired and shall not acquire obligations or securities of its AffiliatesAffiliates or any other Person (other than cash or investment grade securities).
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become duedue to the extent of available funds.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the prior written consent of Lender in any manner that (i) to cure any obvious ambiguity violates the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documents.is outstanding or by its terms cannot be modified without Lender’s consent
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheetconstituent 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsall Pennsylvania limited partnership formalities.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and other, shall maintain and utilize separate stationery, invoices and checks bearing its own namename and shall allocate fairly and reasonably any overhead for shared office space, provided, however, to the extent invoices for such services are not allocated and separately billed to each entity, there is a system in place that provides that the amount thereof that is to he allocated among the relevant parties will be reasonably related to the services provided to each such party. The invoices, checks and stationery utilized by Borrower or utilized to collect its funds or pay its expenses shall bear its own name and shall not bear the name of any other entity unless such entity is clearly designated as being Borrower’s agent.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oi) The organizational documents of If Borrower is a limited partnership or a limited liability company (other than a single member limited liability company), each general partner or managing member (each, an “SPC Party”) shall provide that be a limited liability company or corporation whose sole asset is its interest in Borrower and each such SPC Party will not at all times comply (and except as to Borrower agrees that it will notGeneral Partner with respect to Section 3.1.24(a), (ib), (d) file and (n) above), and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or consent covenant was made directly by such SPC Party (except as to Borrower General Partner with respect to Section 3.1.24(a), (b), (d) and (n) above). Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of organization or incorporation, as applicable, are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners.
(ii) seek or consent to the appointment of a receiver, liquidator or any similar official for If Borrower or SPC Party is a substantial portion single member limited liability company, such Borrower or SPC Party shall have at least two (2) springing members, one of its assets which, upon the dissolution of such sole member or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, withdrawal or (vi) take any action in furtherance of any the disassociation of the foregoingsole member from such Borrower or SPC Party, shall immediately become the sole member of such Borrower or SPE Party, and the other of which shall become the sole member of such Borrower or SPC Party if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents of Borrower shall provide thatat all times cause there to be at least two duly appointed members of the board of directors or independent managers, as long as any portion applicable, who are provided by a nationally-recognized company that provides professional independent directors (Lender hereby approves of the Debt remains outstandinguse of Entity Services as the provider for independent directors) (each, except an “Independent Director”) of each SPC Party who shall not have been at the time of such individual’s appointment or at any time while serving as expressly permitted pursuant to a director of such SPC Party and Borrower, and may not have been at any time during the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, director (other than as sole member (the “Sole Member”) may not resignan Independent Director of SPC Party), and officer, employee, partner, member, attorney or counsel of such SPC Party, Borrower or any Affiliate of any of them, (ii) no additional a creditor, customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of any of them (other than his or her service as an Independent Director of SPC Party), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, member, creditor, customer, supplier or other Person, or (iv) a member shall be admitted of the immediate family of any such stockholder, director, officer, employee, partner, member, creditor, customer, supplier or other Person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of Borrower shall provide thatnot cause or permit the board of directors, partners or members, as long as applicable, of any portion SPC Party and Borrower to take any action which, under the terms of the Debt remains outstanding: (i) Borrower shall be dissolvedany certificate of incorporation, and its affairs shall be wound up, only upon the first by-laws or any voting trust agreement with respect to occur of the following: (A) the termination of the legal existence of the last remaining member any common stock or under any organizational document of Borrower or the occurrence of any other event which terminates the continued membership SPC Party, requires a vote of the last remaining member board of Borrower in directors, partners or members, as applicable, of each SPC Party and Borrower unless at the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member action there shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as at least two members who are necessary to wind up its affairs (including the sale of its assets and properties in each an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerIndependent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of Borrowerthe Borrower and any SPC Party.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accountsaccounts except for the Manager, as agent, pursuant to the terms of the Management Agreement.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has shall not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s pledge its assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become dueother Person.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire acquire, or hold any subsidiary (whether corporationcorporate, partnership, limited liability company or other entity), and Borrower has not owned and will not other) or own any equity interest in any other entity.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party; provided, however, that that certain Management Agreement dated as of January 13, 2000 between Borrower and Manager is hereby approved by Lender.
(d) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than (i) the Debt, (ii) unsecured trade payables not more than sixty (60) days past due incurred in the ordinary course of business in an aggregate amount not exceeding $1,000,000 exclusive of any amount that Borrower is disputing in good faith and (iii) Affiliate Loans, provided, however, notwithstanding the foregoing, that (x) all such Affiliate Loans shall at all times be Subordinate and Junior in Right of Payment and the Affiliate Creditor which makes such Affiliate Loan executes and delivers a subordination agreement to Lender in substantially the form attached as Exhibit D hereto (the "Subordination Agreement"), (y) outside counsel to the Affiliate Creditor which makes such Affiliate Loan executes and delivers to Lender an opinion letter satisfactory to Lender regarding the due authorization, execution, delivery and enforceability of such Subordination Agreement and (z) the sum of all amounts referenced in clauses (i), (ii) and (iii) above shall not exceed 75% of the current appraised value of the Property. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesany third party (including any Affiliate or constituent party).
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Each of Borrower and SPC Member has done or caused to be done, done and will do and cause to be done, all things necessary to observe its limited liability company and other organizational formalities and preserve its separate existence, (i) and Borrower has not terminated and SPC Member will not, nor will Borrower or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsSPC Member permit any constituent party to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower, SPC Member or (ii) to correct or supplement any provision in a manner consistent with such constituent party without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own namechecks.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor None of Borrower, SPC Member or any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The Borrower shall have as its sole member a Delaware limited liability company (the "SPC Member") which is a single purpose entity whose sole asset is its interest in Borrower (which interest shall not be less than one-hundred percent (100%) of the ownership interest in Borrower). Borrower and SPC Member shall each have as an independent manager (each an "Independent Manager") a Delaware corporation which is a single purpose entity whose sole asset is its interest in the Borrower; each of such Independent Managers shall be different corporate entities. Each Independent Manager will at all times comply, and will cause Borrower and SPC Member to comply, with each of the representations, warranties and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by the Independent Managers and the SPC Member. As used in this subsection 3.1.24, the term "single purpose entity" shall mean an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve separateness that are substantially similar to those of Borrower and provide, inter alia, that it: (a) is organized for a limited purpose; (b) has restrictions on its ability to incur indebtedness, dissolve, liquidate, consolidate, merge and/or sell assets; (c) may not file voluntarily a bankruptcy petition without the consent of independent managers or independent directors and (d) shall provide that Borrower will conduct itself in accordance with certain "separateness covenants", including, but not (limited to, the maintenance of its books, records, bank accounts, and Borrower agrees that it will not), (i) file or consent to the filing assets separate from those of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoingother Person.
(p) The organizational documents Borrower and SPC Member shall at all times cause there to be at least two duly appointed members of the board of directors (each an "Independent Director") of the Independent Managers of Borrower and SPC Member, respectively, reasonably satisfactory to Lender who shall provide thatnot have been at the time of such individual's appointment, as long as will not be while serving and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, as sole member director (other than an Independent Director), manager, member, officer, employee, partner, attorney or counsel of such corporation, Borrower, the “Sole SPC Member”) may not resign, and or any Affiliate of any of them, (ii) no additional a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such corporation, Borrower, the SPC Member or any Affiliate of any of them, other than fees received in its capacity as an Independent Director, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member shall be admitted of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents Borrower and SPC Member shall not cause or permit the board of Borrower shall provide that, as long as any portion directors of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member Independent Manager of Borrower or SPC Member, respectively, to take any action which, under the occurrence terms of any other event which terminates the continued membership certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires a vote of the last remaining member board of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 directors of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member Independent Manager of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designeeSPC Member, as the case may be, as a substitute member of Borrower, effective as of unless at the occurrence of the event that terminated the continued membership time of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties action there shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrowerleast two members who are Independent Directors.
(r) Borrower covenants and agrees its Independent Manager shall conduct its business so that it will comply the assumptions made with or cause respect to Borrower in that certain bankruptcy nonconsolidation opinion letter dated the compliance with, date hereof (ithe "Insolvency Opinion") all of delivered by Boyar & Miller P.C. in connection with the representations, warranties Loan shall be true and covenants co▇▇▇▇▇ in this Section 3.13, and (ii) all of the organizational documents of Borrower▇▇▇ ▇espects.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant only duly authorized officers of Borrower to the terms of the organizational documents of Borrower) or constituent party independent have access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred. Upon the withdrawal or the disassociation of the Independent Manager of either Borrower or SPC Member, Borrower and SPC Member, as the case may be, shall immediately appoint a new member whose articles of incorporation are substantially similar to those of the Independent Manager and, in the event a non-consolidation opinion has been provided to Lender, Borrower shall deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new single purpose entity and its equity owners.
(v) Borrower has not and SPC Member shall each have at all times at least two persons who shall automatically become members having a 0% economic interest in Borrower and SPC Member, respectively (ieach, a "Springing Member"), simultaneously upon the occurrence of any event which would cause the sole member of Borrower or SPC Member to cease to be a member of Borrower or SPC Member, as the case may be (a "Springing Event"); provided that if a single purpose entity serves as a Springing Member, only one Springing Member shall be required. Upon the occurrence of a Springing Event, Borrower and SPC Member shall be continued without dissolution and each Springing Member shall, without any action of any person or entity, automatically become a member of Borrower or SPC Member, as the case may be, having a 0% economic interest in Borrower or SPC Member, as the case may be, and the personal representative(s) filed a bankruptcy(as defined in the Act) of each member shall automatically become an unadmitted assignee of each member respectively, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating being entitled thereby only to the relief from debts or the protection of debtors generally, (ii) sought or consented distributions to which such member was entitled pursuant to the appointment operating agreement of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all SPC Member, as the case may be, and any other right conferred thereupon by the Act. Pursuant to Section 18-301 of the Act, each Springing Member shall not be required to make any capital contributions to Borrower or SPC Member, as the case may be, and shall not receive any portion limited liability company interest in Borrower or SPC Member, as the case may be. Prior to its admission to Borrower or SPC Member, as the case may be, as a member of Borrower or SPC Member, as the case may be, pursuant to this subparagraph (v), each Springing Member shall have no interest (economic or otherwise) and is not a member of Borrower or SPC Member. 1350 Corp., a Delaware corporation, shall be the initial Springing Member of Borrower’s assets or properties, (iii) made any assignment for and 1350 Mezzanine Corp., a Delaware corporation, shall be the benefit initial Springing Member of Borrower’s creditors or (iv) SPC Member; provided however, that such initial Springing Members shall not be admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection member of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all SPC Member, as the case may be, until a Springing Event shall have occurred. Upon the death, resignation, dissolution or any portion other event that causes a Springing Member to be unable to fulfill its obligations under the operating agreement of Borrower’s assets Borrower or propertiesSPC Member, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicableadmitted as a member of Borrower or SPC Member, has it shall cease to be a member of Borrower or SPC Member, as the case may be, a new Springing Member shall be appointed and sign an amendment to the operating agreement of Borrower or SPC Member, as the case may be, acknowledging such an obligation that is fully subordinated to the Debt appointment. The Bankruptcy (as defined in Sections 18-101(1) and that will not constitute a claim against Borrower if cash flow in excess 18-304 of the amount required Act) of any member or Springing Member shall not cause such member or Springing Member to pay the Debt is insufficient cease to pay such obligation.
(aa) The organizational documents be a member of Borrower shall provide that Borrower will not: (i) dissolveor SPC Member, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with as the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity)case may be, and upon the occurrence of such an event, the business of Borrower has not owned and will not own any equity interest in any other entityor SPC Member, as the case may be, shall continue without dissolution.
Appears in 2 contracts
Sources: Loan Agreement (Reckson Associates Realty Corp), Loan Agreement (Reckson Operating Partnership Lp)
Single Purpose. Borrower Borrowers hereby represents represent and warrants warrant to, and covenants covenant with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt Indebtedness shall be paid in full, except as otherwise provided herein, in the other Loan Documents or in the Related Consulting Agreement or the Cash Management Agreement, each Borrower, and if any such Borrower is a limited partnership, the general partner of such Borrower:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will shall not own any asset or property other than the related Individual Property or, in the case of a general partner, its interest in such Borrower;
(Aii) the Property, is not engaged and (B) incidental personal property shall not engage in any business other than those necessary for the ownership, leasinguse, management or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the such Individual Property and Borrower will conduct and operate its any transactions entered into in connection with such business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of such Borrower or such general partner, other than any Affiliate of any constituent party, except such transactions embodied in the ordinary course of business Loan Documents and the Related Consulting Agreement, shall be entered into upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from with third parties other than an unrelated third party.Affiliate of such Borrower or such general partner;
(diii) Borrower has not incurred incurred, created or assumed any currently outstanding debt, and will shall not incur incur, create or assume any Indebtedness other than the Debt. No Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the DebtIndebtedness, trade indebtedness incurred in the ordinary course of such Borrower's or such general partner's business (including the financing of insurance premiums) and the Permitted Encumbrances, except as may be secured (senior, subordinate or pari passu) by the Property.otherwise expressly permitted hereunder;
(eiv) Borrower has not made any currently outstanding, and will shall not make any any, loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of such Borrower or such general partner), provided that (A) the execution and delivery of the Loan Documents, the payment by any Affiliate Borrower of any constituent party)amounts payable to Lender thereunder and the disbursement by Lender of any amounts hereunder shall not be deemed a violation of this provision, regardless of to which Individual Property any such amounts relate, provided that Borrowers shall account for all amounts advanced by each Borrower on behalf of any other Borrower pursuant to the Cash Management Agreement and has (B) participation by such Borrower under the Cash Management Agreement shall not acquired be deemed a violation of this provision;
(v) is and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain be solvent and Borrower has paid paying its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared reasonable allocations of personnel and overhead expenses) from its assets as the same shall become due.;
(gvi) Borrower has done or caused to be done, done and will shall do and or cause to be done, done all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsshall not, (ii) Borrower has not amendednor shall any general partner thereof, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writingas applicable, Borrower will not amend, modify or otherwise change its organizational documents except: articles of incorporation or by-laws or partnership agreement, as applicable without the prior written consent of Lender, in its sole discretion;
(ivii) to cure any obvious ambiguity shall observe all corporate or (ii) to correct or supplement any provision partnership formalities, as applicable, and conduct and operate its business as presently conducted and operated and in a manner consistent accordance with the intent of this Agreement and assumptions set forth in the other Loan Documents.Non-Consolidation Opinion;
(hviii) Borrower has maintained shall maintain books and will maintain all of its books, records, financial statements records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and ;
(ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnoteix) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own maintain a separate balance sheet. Borrower shall file business office at its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.Individual Property;
(ix) Borrower (i) has been, will shall be, and at all times has held and will shall hold itself out to the public as, a legal entity separate and distinct from any other entity (entity, including any Affiliate of thereof, provided that each Borrower or any constituent party of Borrower), may identify its Individual Property as associated with the applicable Franchisor;
(iixi) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in file its own nametax returns, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of if required by the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.Code;
(jxii) Borrower has maintained and will endeavor to shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations., which capital may include amounts deposited by such Borrower under the Cash Management Agreement;
(kxiii) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will shall not seek or effect consent to the liquidation, dissolution, dissolution or winding up, consolidation or merger, in whole or in part, of Borrowersuch Borrower or such general partner, nor enter into any sale consolidation, merger, joint venture, syndication or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.combination;
(lxiv) Borrower has not commingled and will shall not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely except as may be provided herein, in its own name.the other Loan Documents or in the Cash Management Agreement;
(mxv) has caused, and at all times shall cause, there to be at least one duly appointed member of the board of directors (an "Independent Director") of such Borrower or such general partner who has maintained not been at the time of such individual's appointment, and will maintain its assets in may not have been at any time during the preceding two years (A) a stockholder of, or an officer, director (other than with respect to such a manner that it will not be costly or difficult to segregateIndependent Director's service as director of such Borrower, ascertain or identify its individual assets from those of any Affiliate or constituent party such general partner or any other Person.
(nBorrower hereunder) Borrower did not assumeor employee of, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets Affiliates, or properties to be partitioned, to cause the appointment of a receiver for all such general partner or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generallyAffiliates, (B) seek a customer or consent supplier to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian such Borrower or any similar official for Borrower of its Affiliates, or for all to such general partner or any portion of Borrower’s assets or propertiesits Affiliates, (C) make a person or other entity controlling any assignment for the benefit of Borrower’s creditors such stockholder, supplier or customer, or (D) admit a member of the immediate family of any such stockholder, officer, employee, supplier or customer or any other director of such Borrower or such general partner. As used in writing Borrower’s inability this subsection (dd), the term "control" means the possession, directly or indirectly, of the power to pay its debts generally as they become due.direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise;
(wxvi) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged caused, and will shall not pledge its assets cause, the board of directors of such Borrower or properties for such general partner to take any action which, under the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties terms of any other Person; certificate of incorporation, by-laws or (iii) engage in any other business activity, or amend its organizational documents voting trust agreement with respect to any such Borrower's common stock, requires the unanimous affirmative vote of one hundred percent (100%) of the matters set forth in this Section 3.13members of the board of directors, without unless at the prior consent time of Lender in its sole discretion.such action there shall be at least one member who is an Independent Director;
(bbxvii) Borrower will consider shall comply with the interests provisions of Borrower’s creditors in connection with all actions.its articles of incorporation or by-laws or partnership agreement, as applicable; and
(ccxviii) shall use separate and distinct invoices and stationery and checks that indicate, by printed or typed identification, that such Borrower has not had and, except in connection with is the Loan, does not have and will not have any of its obligations guaranteed by any Affiliateentity for which payment is made.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 2 contracts
Sources: Loan Agreement (Servico Market Center Inc), Loan Agreement (Lodgian Inc)
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as either (1) the Debt Obligations shall be paid and performed in fullfull or (2) such Borrower has been released from its obligations under the Loan Documents in connection with a Defeasance Event pursuant to Section 2.5.3 hereof or a substitution of properties pursuant to Section 2.6 hereof:
(a) No Borrower (i) has been, is, and owns or will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the Property, its respective Property and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the such Property.
(b) No Borrower has not engaged and or will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the its respective Property and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of any Borrower, any constituent party of any Borrower or any Affiliate of any constituent party, except in the ordinary course of business and (i) upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party, (ii) in connection with the Loan, and (iii) the Operating Lease to which such Borrower is a party.
(d) Such Borrower has not incurred and will not incur incur, and such Borrower shall not permit Operating Lessee pursuant to the related Operating Lease to incur, any Indebtedness other than (i) with respect to such Borrower, the Debt, and (ii) with respect to Operating Lessee, (A) unsecured trade payables and short term operational debt not evidenced by a note and (B) equipment financing that is not secured by a Lien on any Property except the equipment financed, all of which debt under the preceding clauses (A) and (B) does not and will not exceed in the aggregate, including such trade payables, short term operational debt and equipment financing of Operating Lessee as to the Properties owned by the other Borrowers, $2,000,000.00 at any one time; provided that any Indebtedness incurred pursuant to the preceding clause (ii)(A) shall not be outstanding for more than sixty (60) days (except to the extent that such indebtedness or the validity thereof is being duly and diligently contested by such Borrower in accordance with all applicable Legal Requirements) and shall be incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness, Indebtedness other than the Debt, Debt and Permitted Encumbrances may be secured (senior, subordinate or pari passu) by any of the PropertyProperties.
(e) Such Borrower has not made and will not make any loans or advances to any other Person third party (including Operating Lessee, any other Affiliate of Borrower, such Borrower or any constituent party of Borrower or any Affiliate of any constituent partysuch Borrower), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Such Borrower has been, is, is and will endeavor intends to remain solvent and, except as contemplated by this Agreement wherein Borrowers are jointly and severally liable, such Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) to the extent of available funds from its own assets as the same shall become due.
(g) Such Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and such Borrower will not, nor will such Borrower permit SPE Party to, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, Borrower will not the applicable Rating Agencies have issued a Rating Agency Confirmation in connection therewith, amend, modify or otherwise change any term or provision of its partnership certificate, partnership agreement, articles of incorporation and bylaws, certificate of formation, limited liability company operating agreement, trust or other organizational documents except: (i) that in any way relates or pertains to cure any obvious ambiguity or (ii) to correct or supplement any provision the matters set forth in a manner consistent with the intent of this Agreement and the other Loan DocumentsSection 3.1.24.
(h) Such Borrower has maintained and will maintain all of its separate books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Such Borrower’s assets will not be listed as assets on the financial statement of any other Person; , provided, however, that such Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of such Borrower and such Affiliates and to indicate that such 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 separate balance sheet. Such Borrower shall will file its own tax returns (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Such Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including Operating Lessee, any other Affiliate of such Borrower or any constituent party of such Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Such Borrower has maintained and will endeavor intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of such Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Except as contemplated by this Agreement, such Borrower has not commingled and will not commingle the funds or and other assets of such Borrower with those of any Affiliate or constituent party of such Borrower or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Such 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 Affiliate or constituent party of such Borrower or any other Person.
(n) Except as contemplated by this Agreement, such Borrower did has not assume, assumed or guaranteed and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) Each Borrower’s general partner (the “SPE Party”) shall be a single member limited liability company whose sole asset is its interest in such Borrower and the other Borrowers, and SPE Party (i) will cause each Borrower to comply with each of the representations, warranties and covenants contained in this Section 3.1.24; (ii) will at all times comply with each of the representations, warranties and covenants contained in this Section 3.1.24 (other than subsections (a), (b) and (d)) as if such representation, warranty or covenant was made directly by SPE Party; (iii) will not engage in any business or activity other than owning an interest in each Borrower; (iv) will not acquire or own any assets other than its partnership interest in each Borrower; and (v) will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation) other than unsecured trade payables incurred in the ordinary course of business related to the ownership of an interest in each Borrower that (A) do not exceed at any one time $50,000.00 in the aggregate with respect to all Borrowers, and (B) are paid within thirty (30) days after the date incurred. Upon the withdrawal or the disassociation of SPE Party from Borrowers, Borrowers shall immediately appoint a new SPE Party whose certificate of formation and limited liability company operating agreement is substantially similar to those of such withdrawing SPE Party and deliver a new non-consolidation opinion to Lender and the Rating Agency or Rating Agencies, as applicable, with respect to the new SPE Party and its equity owners.
(p) The organizational documents of Borrower SPE Party shall provide that the business and affairs of SPE Party shall be managed by or under the direction of a board of one or more directors or managers designated by the sole member of SPE Party, and at all times there shall be at least two (2) duly appointed individuals (each, an “Independent Director”) on the board of directors or managers of SPE Party who are reasonably satisfactory to Lender and who shall not have been at the time of such individual’s appointment or at any time while serving as an Independent Director (except pursuant to an express provision in SPE Party’s operating agreement providing for the appointment of such Independent Director to become a “special member” upon the sole member of SPE Party ceasing to be a member of SPE Party), and may not have been at any time during the preceding five (5) years (i) a stockholder, director (other than as an Independent Director of SPE Party), officer, employee, partner, member, attorney or counsel of any Borrower, SPE Party, any Affiliate of any of them or any direct or indirect parent of any of them, (ii) a customer, supplier or other person who derives any of its purchases or revenues from its activities with any Borrower or any Affiliate of any Borrower, (iii) a person Controlling any such stockholder, director, officer, employee, partner, member, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, customer, supplier or other person. A natural person who otherwise satisfies the foregoing definition except for being the independent director or independent manager of a “special purpose entity” affiliated with any Borrower shall not be disqualified from serving as an Independent Director of SPE Party if such person is an independent director or independent manager provided by a nationally-recognized company that provides professional independent directors or managers in the ordinary course of its business. As used herein, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of SPE Party shall provide that the board of directors or managers of SPE Party shall not take any action which, under the terms of any certificate of formation, limited liability company operating agreement or any voting trust agreement, requires an unanimous vote of the board of directors or managers, including the Independent Directors, of SPE Party unless at the time of such action there shall be at least two (2) members of the board of directors or managers who are Independent Directors (and such Independent Directors shall have participated in such vote). SPE Party will not (and Borrower agrees that it will not)without the unanimous written consent of its board of directors or managers, including the Independent Directors, on behalf of itself or any Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower official, (iii) take any action that might cause such entity to become insolvent, or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(pr) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding, upon the occurrence of any event that causes the sole member of SPE Party to cease to be a member of SPE Party (other than (A) upon an assignment by such sole member of all of its limited liability company interests in SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of SPE Party and the Loan Documents, or (B) the resignation of such sole member and the admission of an additional member of SPE Party, if permitted pursuant to the organizational documents of SPE Party and the Loan Documents), one of the persons acting as an Independent Director of SPE Party shall, without any action of any Person and simultaneously with the sole member of SPE Party ceasing to be a member of SPE Party, automatically be admitted as the sole member of SPE Party (which may be a non-economic member) (the “Special Member”) and shall preserve and continue the existence of SPE Party without dissolution. The organizational documents of SPE Party shall further provide that for so long as any portion of the Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless (i) a successor Special Member has been admitted to SPE Party as a Special Member, and (ii) such successor Special Member has also accepted its appointment as an Independent Director.
(s) The organizational documents of SPE Party shall provide that, as long as any portion of the Obligations remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documentsthis Agreement, (i) Guarantor, as the sole member (the “Sole Member”) of SPE Party may not resign, and (ii) no additional member shall be admitted to BorrowerSPE Party.
(qt) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding: (i) Borrower SPE Party shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower SPE Party or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower SPE Party in Borrower SPE Party unless the business of Borrower SPE Party is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower SPE Party to cease to be a member of Borrower SPE Party or that causes Sole Member the sole member of SPE Party to cease to be a member of Borrower SPE Party (other than (A) upon an assignment by Sole Member such sole member of all of its limited liability company interests in Borrower SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents, or (B) the resignation of Sole Member such sole member and the admission of an additional member of BorrowerSPE Party, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party, agree in writing (1) to continue the existence of BorrowerSPE Party, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of BorrowerSPE Party, effective as of the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party; (iii) the bankruptcy of Sole the sole member of SPE Party or a Special Member shall not cause such Sole Member sole member or Special Member, respectively, to cease to be a member of Borrower SPE Party and upon the occurrence of such an event, the business of Borrower SPE Party shall continue without dissolution; (iv) in the event of the dissolution of BorrowerSPE Party, Borrower SPE Party shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its the assets and properties of SPE Party shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.,
Appears in 2 contracts
Sources: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Single Purpose. Each of Borrower and Op Co Pledgor hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full, such entity:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring(A) with respect to Borrower, owningacquiring and owning the applicable Collateral owned by it, leasingand (B) with respect to Op Co Pledgor, managing acquiring and operating owning the Propertyapplicable Collateral owned by it, and in each case, entering into and performing its obligations under the Loan Documents, refinancing the Property Collateral in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) with respect to Borrower, the Propertyapplicable Collateral owned by it, and (B) with respect to Op Co Pledgor, the applicable Collateral owned by it, and in each case incidental personal property necessary for the ownershipownership or the foregoing. Since its formation and through the date hereof, leasing, management or operation of neither Borrower nor Op Co Pledgor has conducted any business other than activities related to the Propertyforegoing.
(b) Borrower has not engaged and will not engage in any business or activity other than (A) with respect to Borrower, Borrower, acquiring and owning the acquisitionapplicable Collateral owned by it, ownershipand (B) with respect to Op Co Pledgor, leasingacquiring and owning the applicable Collateral owned by it, management and operation in each case, such other activities as may be incidental thereto, and each of the Property Borrower and Borrower Op Co Pledgor will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of BorrowerBorrower or Op Co Pledgor, any constituent party of Borrower or Op Co Pledgor or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to it than those that would be available on an arm’s-length basis from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, Debt (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documents.
(hPrior Loan) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hersha Hospitality Trust)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, Property and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will in all material respects conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits affiliates or constituent parties, any guarantor (a "Guarantor") of the Debt or any part thereof or any affiliate of any constituent party of Borrower or any Affiliate of any constituent partyGuarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has not incurred incurred, and Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Property.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate affiliate or constituent party, any Guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyGuarantor), and has not acquired and shall not acquire obligations or securities of its Affiliatesother than immaterial advances for tenant improvements pursuant to Leases executed in accordance with this Agreement.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence, .
(iviii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not permit any constituent party or Guarantor to, amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust, operating agreement or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect Borrower's existence as a single purpose entity.
(hix) Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate, any constituent party, any Guarantor or any affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Borrower has maintained and will endeavor 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.
(kxii) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) 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 Affiliate affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) Borrower shall at all times have one member (the "SPE Member") who is a "single purpose entity" and shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE Member.
(xvii) The organizational documents charter of Borrower the SPE Member shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five (and Borrower agrees that it will not), 5) years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become duemember of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer or employee of, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets members, subsidiaries or properties to be partitioned, to cause the appointment Affiliates (except as an Independent Director on any of a receiver for all or any portion their boards of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallydirectors), (ii) sought a customer or consented to the appointment supplier who derives more than ten percent (10%) of a receiver, liquidator, assignee, trustee, sequestrator, custodian its purchases or revenues from its activities with Borrower or any similar official for Borrower of its members, subsidiaries or for all or Affiliates (except as an Independent Director on any portion of Borrower’s assets or propertiestheir boards of directors), (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such member, supplier or customer or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolvemember, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all customer or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth in this Section 3.13SPE Member. As used herein, without the prior consent term "control" means the possession, directly or indirectly, of Lender in its sole discretionthe power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has each Individual Borrower do not owned, does not own, own and will not own any asset or property other than (A) the PropertyProperties, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperties and (C) an interest in one or more other Individual Borrowers.
(bii) Borrower has not engaged and each Individual Borrower will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower and each Individual Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and each Individual Borrower will not enter into any contract or agreement with any Affiliate of any Individual Borrower, any constituent party of any Individual Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has and each Individual Borrower have not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than (A) the Debt and (B) unsecured trade payables incurred by Borrower with respect to one or more of the Properties in the ordinary course of business and not outstanding for more than sixty (60) days and equipment leases entered into by Borrower with respect to one or more of the Properties in the ordinary course of business, which equipment leases shall require total payments in a calendar year not to exceed One Hundred Thousand and No/100 Dollars ($100,000) at any time. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the PropertyProperties.
(ev) No Individual Borrower has not made and or will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and no Individual Borrower shall not acquire obligations or securities of its Affiliates.
(fvi) Borrower has been, is, represents and warrants that each Individual Borrower is solvent and covenants that each Individual Borrower will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gvii) Each Individual Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational partnership formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, each Individual Borrower will not not, nor will any Individual Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: of such Individual Borrower or such Individual Borrower's general partner or managing member (ior the general partner or managing member of such Individual Borrower's general partner or managing member if such Individual Borrower's general partner or managing member is a limited partnership or limited liability company) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Each Individual Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of such Individual Borrower or any constituent party of such Individual Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and Borrower shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own namechecks.
(jx) Each Individual Borrower has maintained and will endeavor covenants 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.
(kxi) Neither No Individual Borrower nor any or constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of any Individual Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiii) 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 Affiliate or constituent party or any other Person.
(nxiv) Each Individual Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other PersonPerson other than those of another Individual Borrower pursuant to the Loan Documents.
(oxv) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make If an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Individual Borrower is continued in a manner permitted by its operating agreement limited partnership, each general partner is a corporation, limited partnership or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests whose sole asset is its interest in such Individual Borrower and each general partner will at all times comply, and will cause such Individual Borrower to comply, with each of the representations, warranties, and covenants contained in this SECTION 4.1(FF) as if such representation, warranty or covenant was made directly by such general partner. If an Individual Borrower is a limited liability company, its managing member is a corporation, limited partnership or limited liability company whose sole asset is its interest in such Individual Borrower and the admission managing member will at times comply, and will cause such Individual Borrower to comply, with each of the transfereerepresentations, warranties, and covenants contained in this SECTION 4.1(FF) as if permitted pursuant to such representation, warranty or covenant was made directly by such managing member. If the organizational documents general partner or managing member of an Individual Borrower is a limited partnership or limited liability company, each general partner or managing member thereof is a corporation, limited partnership or limited liability company whose sole asset is its interest in such general partner or managing member of such Individual Borrower and each general partner or managing member thereof will at all times comply, and will cause the Loan Documents, general partner or (B) the resignation of Sole Member and the admission of an additional managing member of Borrowersuch Individual Borrower to comply, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all each of the representations, warranties and covenants contained in this Section 3.134.1(ff) as if such representation, and (ii) all of the organizational documents of Borrowerwarranty or covenant was made directly by such general partner.
(sxvi) Each Individual Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant shall at all times cause there to the terms be at least one duly appointed member of the organizational documents board of Borrowerdirectors (an "INDEPENDENT DIRECTOR") of each general partner or constituent party independent access managing member of each Individual Borrower (or of each general partner or managing member of any such general partner or managing member that is a limited partnership or limited liability company) reasonably satisfactory to its bank accounts.
(t) Borrower has paid and Lender who shall pay its own liabilities and expenses, including not have been at the salaries time of its own employees (if any) from its own fundssuch individual's appointment, and has maintained and shall maintain a sufficient number of employees may not have been at any time during the preceding five (if any5) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not years (A) file a bankruptcyshareholder of, insolvency or reorganization petition an officer, director, partner or otherwise institute insolvency proceedings employee of, any Individual Borrower or otherwise seek any relief under any laws relating to the relief from debts of their respective shareholders, subsidiaries or the protection of debtors generallyAffiliates, (B) seek a customer of, or consent to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian any Individual Borrower or any similar official for Borrower of their respective shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesAffiliates, (C) make a Person controlling or under common control with any assignment for the benefit of Borrower’s creditors such shareholder, partner supplier or customer, or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidatedirector, consolidate; (ii) sellpartner, transferemployee, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.any
Appears in 1 contract
Sources: Loan Agreement (Capstar Hotel Co)
Single Purpose. Borrower Each Issuer and Operating Lessee hereby represents and warrants to, and covenants with, Lender that since Note Trustee that, as of the date of its formation hereof, and except with respect to the Mexican Issuers, at all times on and after the date hereof prior hereto and until such time as the Debt shall be paid in fullfull or its property is no longer subject to the Lien securing the Debt:
(a) Borrower (i) It has beennot owned and will not own any property or any other assets other than (A) with respect to the Issuer, isthe Properties currently owned by it, and will be organized (B) with respect to the Issuer and the Operating Lessee, incidental personal and intangible property relating to the ownership, leasing or operation of the Properties;
(ii) It was formed solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loanengaging in, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) Borrower has not engaged and will not engage in in, any business or activity other than the acquisition, ownership, leasing, management management, financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Properties;
(ciii) Borrower It has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates (other than the Transaction Documents and Operating Leases), any of its constituent party of Borrower parties or any Affiliate of any constituent party, except in the ordinary course of business and contracts or agreements that are 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 from an unrelated with third party.parties;
(div) Borrower has not incurred and It will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by any Property and no indebtedness other than the Property.Debt and the indebtedness described in clauses (iii) and (vi) of the definition of Permitted Indebtedness may be secured (subordinate or pari passu) by any personal property;
(ev) Borrower has not made and Other than as provided in the Transaction Documents, it will not make any loans or advances to to, and it will not pledge its assets for the benefit of, any other Person (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.any Affiliate or constituent party or any Affiliate of any constituent party;
(fvi) Borrower has been, is, It is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and it will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.;
(gvii) Borrower It has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational limited liability company formalities (in all material respects), as the case may be, and preserve its separate existence, (i) Borrower has not terminated and it will not, nor, to the extent possible under applicable law, will it permit or failed suffer any constituent party to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, certificate of formation (except as required by law), limited liability company agreement, articles of incorporation and bylaws (estatutos sociales), trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision those of such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documents.which would adversely affect its existence as a Single Purpose Entity;
(hviii) Borrower It has maintained and will maintain all of its books, books and records, financial statements and bank accounts separate and apart from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower Person and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets it 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower consolidation is treated as a “disregarded entity” required under GAAP or Mexican GAAP, permitted for tax purposes or as a matter of law, provided that any consolidated financial statements contain a note indicating that it and was or is not required to file tax returns under applicable law)its Affiliates are separate legal entities and maintain records, has not filed books of account and shall not file a consolidated federal income tax return with accounts separate and apart from any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.);
(iix) Borrower (i) It has been, and will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliates, any of its constituent parties or any Affiliate of Borrower or any constituent party of Borrowerparty), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or exercise reasonable efforts to correct any of known misunderstanding actually known to it regarding its Affiliates as a division or department or part of the other separate identity, and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.and it will reasonably allocate any overhead that is shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any officer or employee of an Affiliate;
(jx) Borrower It has maintained and will endeavor 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.;
(kxi) Neither Borrower nor any constituent party of Borrower has sought and, to To the fullest extent permitted by applicable law, neither Borrower it nor any constituent party of Borrower has nor will seek any Issuer's or effect the liquidation, dissolution, Operating Lessee's dissolution or winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.;
(lxii) Borrower has It does not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other PersonPerson except that each Issuer and Operating Lessee may commingle its funds with the funds of the other Issuers and Operating Lessees in the Deposit Account, in the Holding Account, in the Tax and has held Insurance Escrow Account and will hold all in each of its assets solely in its own name.the other Reserve Accounts;
(mxiii) Borrower 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations Affiliate of any other Person and did not hold itself out to be responsible for constituent party or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume;
(xiv) Except in its capacity as a co-obligor under the Notes together with the other Issuers, guarantee or become obligated for the debts or obligations of any other Person and if applicable, it does not and will not hold itself or its credit out to be responsible for or have its credit or assets available to satisfy satisfy, and it has not guaranteed or otherwise become liable for, and has not and will not guarantee or otherwise become liable for, the debts debts, securities or obligations of any other Person.;
(oxv) The organizational documents If it is a limited liability company, either (a) at least one of Borrower its members is and shall provide be a Single Purpose Entity (the "SPE Member") whose sole assets are its interest in the applicable Issuer or Operating Lessee and that Borrower has no less than a one percent (1%) membership interest in the applicable Issuer or Operating Lessee, and such Issuer or Operating Lessee shall be deemed hereby to have made each of the representations, warranties and covenants contained in this Section 4.1(bb) with respect to the SPE Member, and the SPE Member shall have two (2) Independent Directors as duly appointed members of its board of directors or (b) it shall have two (2) Independent Directors on its board of managers or board of directors (as applicable);
(xvi) It has and shall, at all times, have a limited liability company agreement or estatutos sociales which provides that, for so long as the Notes are outstanding and the applicable Issuer's Property remains subject to the Lien securing the Debt, its board of directors (or (a) if such Issuer or Operating Lessee is a limited liability company with a managing member SPE Member, the board of directors of the SPE Member or (b) if such Issuer or Operating Lessee is a board managed limited liability company with two (2) Independent Directors on its board of directors) will not (and Borrower agrees that it will not), (i) file or consent be permitted to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatwhich, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to under applicable law or the terms of any certificate of incorporation or certificate of formation, limited liability company agreement, by-laws or any voting trust agreement with respect to any common stock, requires the Loan Documentsvote of its board of directors or board of managers, unless at the time of such action there shall be at least two members of such board who are Independent Directors; provided, however, that, subject to any applicable Legal Requirement, its board of directors (ior if such Issuer or Operating Lessee is a limited liability company and is not self managed, the board of directors of its SPE Member) Guarantormay, as sole member (at its discretion, be permitted to take any action without regard to the “Sole Member”) preceding clause of this sentence other than the following actions, which actions may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the followingtaken: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right dissolve or power that they might have to cause Borrower or any of its assets or properties to be partitionedliquidate, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law in whole or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, part; (B) seek consolidate or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian merge with or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, into any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, entity or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, convey or encumber (except in accordance with the Loan Documents) transfer all or substantially all of its properties and assets or properties or acquire all or substantially all to any entity unless the applicable Issuer is releasing that Property from the Lien of the assets Mortgage or properties of any other Personpaying off the Notes in accordance with the terms herein; or (iiiC) engage in any business other business activitythan the ownership, or amend its organizational documents maintenance and operation of the Properties or, with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
SPE Member (bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entityif applicable), and Borrower has not owned and will not own any equity interest in any other entity.acting as a member of an Issuer or Operating Lessee;
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate affiliate of the Borrower, any constituent party of Borrower or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than the Debt and such other obligations permitted pursuant to SECTION 6.5 of the Mortgage. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the Property.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower affiliate or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesaffiliates.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct or supplement any provision in a manner consistent with SPC General Partner without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jx) Borrower has maintained and will endeavor 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.
(kxi) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiii) 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 Affiliate affiliate or constituent party or any other Person.
(nxiv) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oxv) The organizational documents If Borrower is a limited partnership, each general partner is a corporation whose sole asset is its interest in Borrower (the "SPC GENERAL PARTNER") and the SPC General Partner will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this SECTION 4.1(dd) as if such representation, warranty or covenant was made directly by the SPC General Partner.
(xvi) Borrower shall provide that Borrower will at all times cause there to be at least one duly appointed member of the board of directors (AN "INDEPENDENT DIRECTOR") of the SPC General Partner reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer, as long as any portion of the Debt remains outstandingdirector, except as expressly permitted pursuant to the terms of the Loan Documentspartner or employee of, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitionedaffiliates, to cause the appointment of (ii) a receiver for all customer of, or supplier to, Borrower or any portion of its shareholders, subsidiaries or affiliates, (iii) a person or other entity controlling or under common control with any such shareholder, partner supplier or customer, or (iv) a member of the assets immediate family of any such shareholder, officer, director, partner, employee, supplier or properties customer of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination other director of Borrower.
(rxvii) Borrower covenants and agrees that it will comply with shall not cause or cause permit the compliance with, (i) all board of directors of the representationsSPC General Partner to take any action which, warranties and covenants in this Section 3.13under the terms of any certificate of incorporation, and (ii) all by- laws or any voting trust agreement with respect to any common stock, requires a vote of the organizational documents board of Borrowerdirectors of the SPC General Partner of Borrower unless at the time of such action there shall be at least one member who is an Independent Director.
(sxviii) Borrower has not permitted shall conduct its business so that the assumptions made with respect to Borrower in that certain opinion letter dated the date hereof (the "INSOLVENCY OPINION") delivered by ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ in connection with the Loan shall be true and correct in all respects.
(xix) Borrower will not permit any Affiliate (other than Sole Member pursuant to Manager in connection with the terms discharge of its obligations under the organizational documents of BorrowerManagement Agreement) or constituent party independent access to its bank accounts.
(txx) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(uxxi) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) . Upon the withdrawal or the disassociation of the SPC General Partner from Borrower, Borrower has not (i) filed shall immediately appoint a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating new general partner whose partnership agreement is substantially similar to those of the SPC General Partner and deliver a new non- consolidation opinion to the relief from debts Rating Agency or the protection of debtors generallyRating Agencies, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in new special purpose general partner and its sole discretionequity owners.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, operation, leasing, management or operation and/or maintenance of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisitionownership, ownershipfinancing, management, operation, leasing, management maintenance and operation sale of the Property and Borrower will conduct other activities incidental thereto (in each case in accordance with the terms and operate its business as presently conducted provisions of this Agreement and operatedthe other Loan Documents).
(c) Except for capital contributions or capital distributions (including dividends) permitted under the terms and conditions of Borrower’s operating agreement and properly reflected on the books and records of Borrower, Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, reasonable and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that (A) any Indebtedness incurred pursuant to subclause (ii) shall be (x) not more than sixty (60) days past the date incurred and (y) incurred in the ordinary course of business, and (B) any Indebtedness incurred pursuant to subclauses (ii) and (iii) in an aggregate amount not to exceed, at any one time, five percent (5%) of the original principal balance of the Loan. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrowerthird party, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its AffiliatesAffiliates except as otherwise expressly permitted in this Agreement.
(f) Borrower has been, is, and will endeavor not make any distributions so as to remain solvent and render Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will insolvent or cause Borrower to be unable to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheetconstituent 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 (or its member’s Affiliates) provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and from such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (returns, except to the extent that (i) Borrower is treated as a “disregarded entity” entity for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not or (ii) Borrower is allowed to file consolidated tax returns, in which case Borrower may include its taxable income, loss, deductions, gains or other items as part of a consolidated federal income tax return, provided that each consolidated tax return with will make clear that the assets of Borrower are not available to satisfy the liabilities of any other Person, and has paid and shall pay any taxes required Person or that the assets of such Person are not available to be paid under applicable lawsatisfy the liabilities of Borrower. Borrower has maintained and shall maintain observe organizational formalities with respect to its books, records, resolutions and agreements as official recordsagreements.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought andparty, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, termination, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oi) The If Borrower is a limited partnership or a limited liability company (other than a single member Delaware limited liability company), each general partner or managing member (each, an “SPC Party”) shall be a corporation or limited liability company whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose organizational documents are substantially similar to those of Borrower shall provide that Borrower will not (such SPC Party and Borrower agrees that it will not), (i) file or consent deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners.
(ii) seek If Borrower is a single member Delaware limited liability company, Borrower shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or consent to the appointment of a receiver, liquidator withdrawal or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any disassociation of the foregoingsole member from Borrower, shall immediately become the sole member of Borrower.
(p) The organizational documents of SPC Party or Borrower shall provide thatat all times cause there to be at least two duly appointed managers of SPC Party or Borrower (each, an “Independent Manager”) who shall not have been at the time of such individual’s appointment or at any time while serving as long as a manager of SPC Party or Borrower, and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, director or manager (other than as an Independent Manager of SPC Party or Borrower), officer, employee, trustee, partner, attorney or counsel of Borrower or any Affiliate of Borrower, (ii) a customer, creditor, supplier or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower, (iii) a Person or other entity Controlling or under common Control with any such stockholder, partner, customer, creditor, supplier or other Person, or (iv) a member of the immediate family by blood or marriage of any such stockholder, director, officer, employee, trustee, partner, customer, creditor, supplier or other Person. A natural person who satisfies the foregoing definition other than subparagraph (ii) shall not be disqualified from serving as an Independent Manager of the SPC Party if such individual is an independent director or manager provided by a nationally recognized company that provides professional independent directors or managers and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition except for being the independent director or manager of a “special purpose entity” affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower or any co-borrower shall not be disqualified from serving as an Independent Manager of the SPC Party or Borrower, as sole member applicable, if such individual is at the time of initial appointment, or at any time while serving as an Independent Manager, provided by a nationally recognized company that provides professional independent directors/managers and other corporate services in the ordinary course of its business. Notwithstanding the immediately preceding sentence, an Independent Manager may not simultaneously serve as Independent Manager of Borrower and independent manager or director of a special purpose entity that owns a direct or indirect equity interest in Borrower or a direct or indirect interest in any co-borrower with Borrower. As used in this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities and impose requirements intended to preserve its separateness that are substantially similar to those of Borrower, and provide, inter alia, that it (the “Sole Member”A) is organized for a limited purpose, (B) has restrictions on its ability to incur indebtedness, dissolve, liquidate, consolidate, merge and/or sell assets, (C) may not resign, file voluntarily a bankruptcy petition without the consent of the Independent Manager and (iiD) no additional member shall be admitted to Borrowerconduct itself in accordance with certain “separateness covenants,” including, but not limited to, the maintenance of its books, records, bank accounts and assets separate from those of any other person or entity.
(q) The organizational documents of Borrower shall provide thatnot cause or permit the board of directors or managers of any SPC Party and/or Borrower, as long as applicable, to take any portion action which, under the terms of the Debt remains outstanding: (i) Borrower shall be dissolvedany certificate of incorporation, and its affairs shall be wound up, only upon the first by laws or any voting trust agreement with respect to occur of the following: (A) the termination of the legal existence of the last remaining member any common stock or under any organizational document of Borrower or the occurrence of any other event which terminates the continued membership SPC Party (if any), as applicable, requires a vote of the last remaining member board of Borrower in Borrower unless the business directors or board of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act managers of each SPC Party (the “Act”), or (Bif any) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to as applicable, unless at the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member action there shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and at least two (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as members who are necessary to wind up its affairs (including the sale of its assets and properties in each an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerIndependent Manager.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Affiliate) set forth in the Insolvency Opinion except as otherwise provided in Article VIII herein, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of Borrowerthe Borrower and any SPC Party.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to a property manager which is an Affiliate of Borrower or its members and then only in accordance with the terms and provisions of the organizational documents of Borrowerapplicable Management Agreement and this Agreement) or constituent party independent access to its bank accounts; provided, however, that certain authorized employees of THI who perform administrative duties with respect to the operation and management of bank accounts and in such capacity identify themselves as Borrower’s agent, under the supervision and direction of Borrower’s officers or members, may perform such duties with respect to Borrower’s bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporationcorporate, partnership, limited liability liability, company or other entity), and Borrower has not owned and will not own others) or hold any equity interest in any other entity.
(v) Borrower hereby represents and warrants that since the date of its formation to the date of its Amended and Restated Operating Agreement on April 30, 1999, the Borrower conducted no business other than preparing to acquire or acquiring the Property.
(w) Borrower has, at all times, complied with the provisions of its organizational documents then in effect in all respects material to the separateness of Borrower, including all of those provisions set forth in Section 11 of it’s Operating Agreement dated April 30, 1999.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment None of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Owners does not own, and or will not own any encumbered asset or property other than (A) the Property, and (B) incidental personal property necessary for or used in connection with the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and None of the Owners will not engage in any business or activity other than the acquisition, ownership, leasingmanagement, management operation, sale and operation refinancing of the Property Property, and Borrower each Owner will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and None of the Owners will not enter into any contract or agreement with any Affiliate of Borrowerits affiliates or constituent parties, any constituent party of Borrower or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower None of the Owners has not incurred and or will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness and other than indebtedness owing by an Owner to Banyan for customary and ordinary debt service payments, leasing commissions, tenant improvement costs, Operating Expenses and Capital Expenses advanced by Banyan in the ordinary course of Banyan's business on behalf of such Owner. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the Property.
(ev) Borrower None of the Owners has not made and or will not make any loans or advances to any other Person third party (including any Affiliate of Borroweraffiliate or constituent party, any constituent party of Borrower or any Affiliate affiliate of any constituent party), other than advances and has not acquired repayments made by Owner to Banyan in the ordinary course of each such Owner's and shall not acquire obligations or securities of its AffiliatesBanyan's business.
(fvi) Borrower has been, is, Each Owner is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower Each Owner that is a limited liability company has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational limited liability company formalities and preserve its separate existence, (i) Borrower . Each Owner or Managing Member that is a corporation has not terminated done or failed caused to comply with be done and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documents.
(h) Borrower has maintained and will maintain do all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are things necessary to wind up observe corporate formalities and preserve its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrowerexistence.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower Parties hereby represents represent and warrants warrant to, and covenants covenant with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, does not own and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating not own any asset or property other an (x) the Property, entering into and performing its obligations under (y) incidental personal and intangible property necessary for the Loan Documents, refinancing the Property in connection with a permitted repayment ownership or operation of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and Property; (ii) has not owned, Junior B Mezzanine Guarantor does not own, own and will not own any asset or property other than (A) its interest in the Property, Junior A Mezzanine Guarantor and (B) incidental personal and intangible property necessary for the ownership, leasing, management ownership of such Equity Interest; and (iii) each other SPE Entity will not own any asset or operation property other than the applicable Equity Interest reflected on the Organizational Chart and incidental personal and intangible property necessary for the ownership of the Propertysuch Equity Interest.
(bi) Borrower has not engaged and will not engage in any business or activity other than the acquisition, development, ownership, leasingoperation, management and operation leasing and maintenance of the Property and entering into the applicable Loan Documents, the Senior Loan Documents, the Senior Mezzanine Loan Documents and the Junior A Mezzanine Loan Documents, and activities incidental thereto, and Borrower will conduct and operate its business as presently conducted and operated.; (ii) Junior B Mezzanine Guarantor will not engage in any business other than the acquisition, ownership, management and operation of the Junior A Mezzanine Guarantor and entering into the applicable Loan Documents, and activities incidental thereto, and Junior B Mezzanine Guarantor will conduct and operate its business as presently conducted and operated; and (iii) each other SPE Entity will not engage in any business other than the ownership, management and operation of the applicable Equity Interest reflected on the Organizational Chart and entering into the applicable Loan Documents, Senior Mezzanine Loan Documents and Junior A Mezzanine Loan Documents, and activities incidental thereto, and each SPE Entity will conduct and operate its business as presently conducted and operated
(c) Borrower has not entered and except for the Approved Management Agreement, each SPE Entity will not enter into any contract or agreement with any Affiliate affiliate of Borrowersuch SPE Entity, any constituent party of Borrower such SPE Entity or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has and Borrower GP have not incurred and will not incur any Indebtedness other than the Permitted Debt. No Indebtedness, Indebtedness other than the Debt, Senior Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower Junior B Mezzanine Guarantor has not made incurred and will not incur any Indebtedness other that the Debt.
(f) Senior Mezzanine Guarantor has not incurred and will not incur any Indebtedness other than Indebtedness incurred pursuant to the Senior Mezzanine Loan Documents.
(g) Junior A Mezzanine Guarantor has not incurred and will not incur any Indebtedness other than Indebtedness incurred pursuant to the Junior A Mezzanine Loan Documents.
(h) Common GP has not incurred and will not incur any Indebtedness other than Indebtedness, if any, incurred pursuant to the Loan Documents, the Senior Mezzanine Loan Documents, and the Junior A Mezzanine Loan Documents.
(i) Other than as set forth in subsections (d)-(h) above, no SPE Entity has incurred, and no SPE Entity will incur, any Indebtedness (provided that Borrower and Borrower GP may incur Permitted Debt pursuant to subsection (d) above).
(j) No SPE Entity has made nor will it make any loans or advances to any other Person third party (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent partybut provided that this shall not prohibit tenant allowances pursuant to the Leases permitted under this Agreement), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fk) Borrower has been, is, Each SPE Entity is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and each SPE Entity will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gl) Borrower Each SPE Entity has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, and no SPE Entity will, nor will it permit any constituent party to Modify the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of such SPE Entity or such constituent party in any manner that (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with violates the provisions of its organizational documentssingle purpose covenants set forth in this Section 3.1.24, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement Modifies any provision in a manner consistent with thereof that by its terms cannot be Modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be Modified without Lender’s consent.
(hm) Borrower has maintained and Each SPE Entity will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates affiliates and any other Personconstituent party. BorrowerEach SPE Entity’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s respective assets will not be listed as assets on the financial statement of any other Person; , provided, however, that Borrowereach SPE Entity’s respective assets may be included in a consolidated financial statement of its Affiliates affiliates provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower such SPE Entity and such Affiliates affiliates and to indicate that Borrowersuch SPE Entity’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrowersuch SPE Entity’s own separate balance sheet. Borrower shall Each SPE Entity will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not returns are required to file tax returns under applicable law), has not be filed by such SPE Entity) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and Each SPE Entity shall maintain its books, records, resolutions and agreements as official records.
(in) Borrower (i) has been, Each SPE Entity will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate of Borrower such SPE Entity or any constituent party of Borrowersuch SPE Entity), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates affiliates as a division or department or part of the other and (v) has maintained and utilized and other, shall maintain and utilize separate stationerystationery (or use its manager’s stationary, which if used, shall clearly identify manager as a separate entity), invoices and checks bearing its own namename and shall allocate fairly and reasonably any overhead for shared office space (if such SPE Entity has shared office space).
(jo) Borrower has maintained and Each SPE Entity will endeavor 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.
(kp) Neither Borrower No SPE Entity nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of businessTransfer Restricted Party.
(lq) Borrower has not commingled No SPE Entity will commingle its funds and will not commingle funds or other assets of Borrower with those of any Affiliate affiliate or constituent party or any other Person, and has held and each SPE Entity will hold all of its assets solely in its own name.
(mr) Borrower Each SPE Entity has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate affiliate or constituent party or any other Person.
(ns) Borrower did not assumeExcept pursuant to the Loan Documents, the Senior Mezzanine Loan Documents and Junior A Mezzanine Loan Documents, as applicable, no SPE Entity will guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oi) The organizational documents of Borrower shall provide that GP and Common GP, and, if Borrower will not or any Mezzanine Guarantor is a limited partnership or a limited liability company (and Borrower agrees that it will notother than a single member limited liability company), each general partner or managing member (each, along with Borrower GP and Common GP, an “SPC Party”) shall be a limited liability company or corporation whose sole assets are its interest in any SPE Entity and each such SPC Party will at all times comply (excluding Borrower GP’s and Common GP’s compliance with Section 3.1.24(a)(i) and (ii) and (b)(i) and (ii) above), and will cause such SPE Entity to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party (excluding Borrower GP’s and Common GP’s compliance with Section 3.1.24(a)(i) and (ii) and (b)(i) and (ii) above). Upon the withdrawal or the disassociation of an SPC Party from the applicable SPE Entity, such SPE Entity shall immediately appoint a new SPC Party whose articles of organization or incorporation, as applicable, are substantially similar to those of such SPC Party and deliver to Lender a new non-consolidation opinion with respect to the new SPC Party and its equity owners.
(ii) If Borrower or any Mezzanine Guarantor is a single member limited liability company, such SPE Entity shall have at least two (2) springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from such SPE Entity, shall immediately become the sole member of such SPE Entity, and the other of which shall become the sole member of such SPE Entity if the first such springing member no longer is available to serve as such sole member.
(u) Borrower Parties shall at all times cause each SPC Party to have at least two duly appointed members of the board of directors or independent managers, as applicable, reasonably satisfactory to Lender who are provided by a company that provides professional independent directors (each, an “Independent Director”). Each Independent Director shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party, and may not have been at any time during the preceding five years (i) file a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or consent to the filing counsel of such SPC Party, Borrower Party or any affiliate of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statutethem, (ii) seek a customer, supplier or consent to the appointment other Person who derives any of a receiverits purchases or revenues from its activities with such SPC Party, liquidator Borrower Party or any similar official for Borrower affiliate of any of them (other than with respect to his or her services as an Independent Director of any SPC Party), (iii) a substantial portion of its assets Person or propertiesother entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) make an assignment for a member of the benefit immediate family of creditorsany such stockholder, director, officer, employee, partner, customer, supplier or other Person. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(v) admit in writing Borrower’s inability Borrower Parties shall not cause or permit the board of directors, partners or members, as applicable, of any SPC Party to pay its debts generally as they become due, or (vi) take any action in furtherance which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of SPC Party, requires a vote of the foregoingboard of directors, partners, or members, as applicable, of each SPC Party unless at the time of such action there shall be at least two members who are each an Independent Director.
(pw) The organizational documents of Borrower Each SPE Entity shall provide that, as long as any portion of conduct its business so that the Debt remains outstanding, except as expressly permitted pursuant assumptions made with respect to each SPE Entity in the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member Insolvency Opinions shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of true and correct in all material respects. In connection with the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrowerforegoing, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets Parties hereby covenant and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power agree that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower Parties or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of Borrowereach SPE Entity and any SPC Party.
(sx) Borrower has not permitted and No SPE Entity will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) affiliate or constituent party independent access to its bank accounts, except as provided in the Approved Management Agreement.
(ty) Borrower has paid and Each SPE Entity shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(uz) Borrower has compensated and Each SPE Entity shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(vaa) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s No SPE Entity will pledge its assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directorsexcept as provided under the Senior Loan Documents, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of , the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of Senior Mezzanine Loan Documents and the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretionJunior A Mezzanine Loan Documents.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will shall not form, acquire acquire, or hold any subsidiary (whether corporationcorporate, partnership, limited liability company or other entity), and Borrower has not owned and will not other) or own any equity interest in any other entity.
Appears in 1 contract
Sources: Junior B Mezzanine Loan Agreement (Thomas Properties Group Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (A) the PropertyProperties, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperties.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate affiliate of the Borrower, any constituent party of Borrower or any Affiliate affiliate of any constituent party, except in the ordinary course of business and any such case upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than the Debt. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower affiliate or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesaffiliate, provided, however, that Borrower may make loans to Tenants under Leases for tenant improvement work pursuant to such Leases which loans are made in the ordinary course of Borrower's business and which loans shall not exceed at any time $1,000,000 in the aggregate for all Properties.
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational partnership formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct or supplement any provision in a manner consistent with such constituent party without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; constituent party and Borrower will file its own tax returns, provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s 's assets may be included in a consolidated financial statement of its Affiliates parent companies if such a consolidated statement is required to comply with the requirements of GAAP, provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements statement shall contain a footnote to indicate the separateness of effect that Borrower's assets are owned by Borrower and such Affiliates and that they are being included on the financial statement of its parent solely to indicate that Borrower’s assets and credit are not available to satisfy comply with the debts and other obligations requirements of such Affiliates or any other PersonGAAP, and (B)such further provided that such assets shall be listed on Borrower’s 's own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own namechecks.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of If Borrower shall provide that is a limited partnership, each general partner is a corporation or a limited liability company whose sole asset is its interest in Borrower will not (and Borrower agrees that it will notthe "SPE GENERAL PARTNER"), and if any such SPE General Partner (ior managing member) file or consent is a limited liability company, each managing member of such limited liability company is a corporation whose sole asset is its interest in such limited liability company (the "SPE MANAGING MEMBER"), and each SPE General Partner and each SPC Managing Member will at all times comply, and will cause Borrower to the filing of any petitioncomply, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any with each of the foregoingrepresentations, warranties, and covenants contained in this Section 3.1.30 as if such representation, warranty or covenant was made directly by such general partner.
(p) The organizational documents Borrower shall at all times cause there to be at least one duly appointed member of the board of directors (an "INDEPENDENT DIRECTOR") of the SPC Managing Member of the SPE General Partner of Borrower reasonably satisfactory to Lender who shall provide thatnot have been at the time of such individual's appointment, as long as and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, as sole member (the “Sole Member”) may not resigndirector, and officer, employee, partner, attorney or counsel of such corporation, Borrower or any affiliate of either of them, (ii) no additional a customer, supplier or other person who derives more than 10% of its purchases or revenues from its activities with such corporation, Borrower or any affiliate of either of them, (iii) a person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other person, or (iv) a member shall be admitted of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other person. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole or permit the board of directors of the SPC Managing Member of the SPE General Partner to cease take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to be any common stock, requires a member vote of Borrower and upon the occurrence board of directors of such event, SPC Managing Member unless at the business time of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties action there shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrowerleast one member who is an Independent Director.
(r) Borrower covenants shall conduct its business so that the assumptions made with respect to Borrower in that certain opinion letter dated the date hereof (the "INSOLVENCY OPINION") delivered by Honi▇▇▇▇ ▇▇▇l▇▇ ▇▇▇w▇▇▇▇ ▇▇▇ Cohn ▇▇ connection with the Loan shall be true and agrees that it will comply with or cause the compliance with, (i) correct in all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrowerrespects.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (employees, if any) , in light of its contemplated business operationsoperations and shall pay the salaries of its own employees, if any.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to . Upon the relief from debts withdrawal or the protection disassociation of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for SPE General Partner from Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to SPC Managing Member from the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the LoanSPE General Partner, Borrower has not pledged and will not pledge its assets shall immediately appoint a new member whose operating agreement or properties for the benefit ofarticles of incorporation, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, orare substantially similar to those of the SPE General Partner or SPC Managing Member, if as applicable, has such an obligation that is fully subordinated and deliver a new non-consolidation opinion to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveRating Agency or Rating Agencies, mergeas applicable, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13new special purpose partner or member, without as the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity)case may be, and Borrower has not owned and will not own any its equity interest in any other entityowners.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and -------------- covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, owned and will not own any asset or property other than (A) the Property, Mortgaged Property and (B) incidental personal property necessary for relating to the ownership, leasing, management ownership or operation of the Mortgaged Property.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasingmanagement, management financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operatedMortgaged Property.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and other than upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arm’s-arm's length basis from an unrelated with third partyparties.
(d) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(ev) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will generally pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate or partnership (or other applicable organizational) formalities, as the case may be, and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit or suffer any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct or supplement any provision such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect Borrower's existence as a Special Purpose Entity.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, constituent party (provided that Borrower’s assets may have been nothing shall prohibit Borrower from being included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such the consolidated financial statements or tax group of another Person to indicate the separateness of extent required by GAAP or applicable law, respectively) and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower consolidation is treated required as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable matter of law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or Borrower, any constituent party of BorrowerBorrower or any Affiliate of any constituent party), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jx) Borrower has maintained and will endeavor 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.
(kxi) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person, and has held and will hold all of its assets solely in its own namePerson (except as specifically contemplated by the Cash Management Procedures).
(mxiii) 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 Affiliate or constituent party or any Affiliate of any constituent party or any other Person.
(nxiv) Borrower did has not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not held and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oxv) The organizational documents If Borrower is a limited partnership, at least one of Borrower general partners shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of be a receiver, liquidator or any similar official for Borrower or a substantial portion of Special Purpose Entity whose sole asset is its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit interest in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first deemed hereby to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all made each of the representations, warranties and covenants contained in this Section 3.13, and (ii) all of the organizational documents of BorrowerSCHEDULE with respect to such general partner.
(sxvi) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant shall at all times cause there to the terms be at least one duly appointed member of the organizational documents board of Borrowerdirectors of the general partner of Borrower or manager of Borrower (an "Independent Director/Manager") or constituent party independent access ---------------------------- reasonably satisfactory to its bank accounts.
(t) Borrower has paid and Lender who shall pay its own liabilities and expenses, including be "Independent" at the salaries time of its own employees (if any) from its own fundssuch individual's appointment. "Independent" shall mean that such Person is not, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not within the preceding five years been (i) filed a bankruptcyan officer, insolvency director, employee, partner, member, beneficial interest holder or reorganization petition stockholder of Borrower or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyits members, (ii) sought an officer, director, employee, partner, member, beneficial interest holder or consented to the appointment stockholder of a receiver, liquidator, assignee, trustee, sequestrator, custodian any Affiliate of Borrower or any similar official for Borrower or for all or any portion of Borrower’s assets or propertiesits members, (iii) made a customer, supplier or service provider of Borrower or any assignment for the benefit Affiliate thereof (other than a hotel guest or a customer, supplier or service provider that does not derive more than 10% of Borrower’s creditors its revenues from its activities with Borrower or any Affiliate), or (iv) admitted a spouse, parent, sibling or child of any of any person described in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve), merge, liquidate, consolidate; (ii) sellor (iii); provided, transferhowever, disposethat a person shall not be deemed to be a director of a member or an Affiliate of Borrower solely by reason of such person being an Independent Director/Manager of a single- purpose entity that would otherwise be deemed to be an Affiliate because they are under common control; provided further, or encumber (except in accordance with however, that the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all Independent Director/Managers of the assets Senior Borrower, Mezzanine Borrower and Junior Lender shall at all times be different individuals. As used herein, the term control means the possession, directly or properties indirectly, of the power to direct or cause the direction of the management and policies of a Person whether through ownership of voting securities, by contract or otherwise. Upon the conditions specified in Borrower's Operating Agreement, the Independent Director/Manager shall also be a non- economic member with authority to continue Borrower's existence upon bankruptcy or dissolution of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretionmember.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Desert Springs Marriott Limited Partnership)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to it than those that would be available on an arm’s-length basis from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gi) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents and (iiiiv) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Organizational Documents.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such B) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has filed and shall file its own tax returns (except to the extent that Borrower was or is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law) and has not filed and shall not file a consolidated federal income tax return with any other Person (except to the extent that Borrower was or is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, stationery and invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents Organizational Documents of Borrower shall provide that the business and affairs of Borrower shall be managed by or under the direction of a board of one or more directors or managers designated by Sole Member, and at all times there shall be at least one (1) duly appointed individuals on the board of directors or managers (an “Independent Director”) of Borrower, each of whom (i) has at least three (3) years prior employment experience and continues to be employed as an independent director, independent manager or independent member 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, independent managers and independent members, another nationally-recognized company that provides such services and which is reasonably approved by Lender; (ii) is not on the board of directors or managers of more than two (2) Affiliates of Borrower; and (iii) is not, and has never been, and will not, while serving as an Independent Director be, any of the following: (A) a stockholder, director, manager, officer, employee, partner, member, attorney or counsel of Borrower, any Affiliate of Borrower or any direct or indirect equity holder of any of them, (B) a creditor, customer, supplier, service provider (including provider of professional services) or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower (other than a nationally-recognized company that routinely provides professional independent directors, independent managers or independent members and other corporate services to Borrower or any Affiliate of Borrower in the ordinary course of its business), (C) a member of the immediate family of any such stockholder, director, manager, officer, employee, partner, member, creditor, customer, supplier, service provider or other Person, or (D) a Person controlling or under common control with any of (A), (B) or (C) above. A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) by reason of (I) being, having been or becoming an Independent Director of an Affiliate of Borrower that is not in the direct chain of ownership of Borrower or Sole Member and that is required by a creditor to be a “single purpose entity”; provided that such Independent Director is, was or will be employed by a company that routinely provides professional independent directors, independent managers or independent members, or (II) being, having been or becoming a member of Borrower pursuant to an express provision in Borrower’s operating agreement providing for the appointment of such Independent Director as a member of Borrower upon the occurrence of any event pursuant to which Sole Member ceases to be a member of Borrower (including the withdrawal or dissolution of Sole Member). A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) or (iii)(B) by reason of being, having been or becoming an Independent Director of a “single purpose entity” affiliated with Borrower; provided that the fees or other compensation that such individual earns by serving as an Independent Director of one or more Affiliates of Borrower in any given year constitute, in the aggregate, less than five percent (5%) of such individual’s income for such year. The Organizational Documents of Borrower shall provide that no Independent Director of Borrower may be removed or replaced without Cause, and unless Borrower provides Lender with not less than three (3) Business Days’ prior notice of (1) any proposed removal of any Independent Director, together with a statement as to the reasons for such removal, and (2) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the Organizational Documents of Borrower relating to an Independent Director. In addition, the Organizational Documents of Borrower shall provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” and “separateness” provisions of such Organizational Documents. As used in this paragraph, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings. As used in this paragraph, the term “single purpose entity” shall mean a Person whose Organizational Documents contain, and who covenants that such Person shall comply or cause compliance with, provisions substantially similar to those set forth in this Section 3.1.24.
(p) The Organizational Documents of Borrower shall provide that the board of directors or managers of Borrower shall not take any action which, under the terms of any Organizational Documents (including, if applicable, any voting trust agreement with respect to any common stock), requires a unanimous vote of the board of directors or managers of Borrower unless, at the time of such action, there shall be at least one (1) member of the board of directors or managers who is an Independent Director (and such Independent Director has participated in such vote). The Organizational Documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), without the unanimous consent of its board of directors or managers, including the consent of the Independent Director, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iii) take any action that might cause Borrower to become insolvent, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, (vi) declare or effectuate a moratorium on the payment of any obligations, or (vivii) take any action in furtherance of any of the foregoing. In addition, the Organizational Documents of Borrower shall provide that, when voting with respect to any of the matters set forth in the immediately preceding sentence of this Section 3.1.24(p), the Independent Director shall consider only the interests of Borrower, including its creditors.
(pq) The organizational documents Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, upon the occurrence of any event that causes the sole member of Borrower (“Sole Member”) to cease to be a member of Borrower (other than (i) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the Organizational Documents of Borrower and the Loan Documents, or (ii) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the Organizational Documents of Borrower and the Loan Documents), each of the persons acting as an Independent Director of Borrower shall, without any action of any Person and simultaneously with Sole Member ceasing to be a member of Borrower, automatically be admitted as a member of Borrower (a “Special Member”) and shall preserve and continue the existence of Borrower without dissolution. The Organizational Documents of Borrower shall further provide that for so long as any portion of the Debt is outstanding, no Special Member may resign or transfer its rights as a Special Member unless (A) a successor Special Member has been admitted to Borrower as a Special Member, and (B) such successor Special Member has also accepted its appointment as an Independent Director of Borrower.
(r) The Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) Member may not resign, and (ii) no additional member shall be admitted to Borrower.
(qs) The organizational documents Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, Property Loan and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperty Loan.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation ownership of the Property Loan and Borrower will in all material respects conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party of Borrower Guarantor or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has not incurred incurred, and Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty Loan.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borroweror constituent party, any constituent party of Borrower Guarantor or any Affiliate of any constituent partyparty or Guarantor), and has not acquired and shall not acquire obligations or securities of its Affiliatesexcept for advances approved by Lender to pay redevelopment costs in connection with the Property that are secured by the Property Loan Documents.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence, .
(iviii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not permit any constituent party or Guarantor to, amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust, operating agreement or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect Borrower's existence as a single purpose entity.
(hix) Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate, any constituent party, Guarantor or any Affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Borrower has maintained and will endeavor 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.
(kxii) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party, Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) 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 Affiliate or constituent party, Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person.
(nxv) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oxvi) Borrower shall at all times have one member (the "SPE Member") who is a "single purpose entity" and shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE Member.
(xvii) The organizational documents charter of Borrower the SPE Member shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five (and Borrower agrees that it will not), 5) years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become duemember of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer or employee of, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment Affiliates (except as an Independent Director on any of a receiver for all or any portion their boards of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallydirectors), (ii) sought a customer, or consented to the appointment of a receiversupplier, liquidator, assignee, trustee, sequestrator, custodian Borrower or any similar official for Borrower of its members, subsidiaries or for all or Affiliates (except as an Independent Director on any portion of Borrower’s assets or propertiestheir boards of directors), (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such member, supplier or customer or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth in this Section 3.13SPE Member. As used herein, without the prior consent term "control" means the possession, directly or indirectly, of Lender in its sole discretionthe power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. ENTITY/SEPARATENESS. ---------------------------------- Borrower hereby represents and represents, warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in fullfollows:
(a) The purpose for which the Borrower is organized shall be limited solely to (i) has beenowning, isholding, and will be organized solely for the purpose of acquiring, owningselling, leasing, transferring, exchanging, operating and managing and operating the PropertyProperties, (ii) entering into and performing its obligations under this Agreement with the Loan DocumentsLender, (iii) refinancing the Property Properties in connection with a permitted repayment of the Loan, Loan and (iv) transacting any and all lawful business for which a Borrower may be organized under its constitutive law that is incident, necessary reasonable and appropriate to accomplish the foregoing, and . Borrower shall conduct its business in accordance with the foregoing purpose.
(iib) has not owned, Borrower does not own, own and will not own any asset or property other than (Ai) the PropertyProperties, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Properties. Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower Borrower, the guarantors or any Affiliate of any constituent partyparty or guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arm’s-arms- length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtLoan, (ii) trade and operational debt incurred in the ordinary course of business which is outstanding for no more than sixty (60) days with trade creditors and in amounts as are normal and reasonable under the circumstances, provided such debt is not evidenced by a note, is paid when due and such debt does not exceed at any one time one percent (1%) of the Release Amount for the applicable Individual Property, and (iii) debt incurred in the financing of equipment and other personal property located at the Properties which is not in any way deemed to be real property, secured solely by such equipment or personal property being financed, not to exceed at any one time two percent (2%) of the Release Amount for the applicable Individual Property. No Indebtedness, Indebtedness other than the Debt, Loan may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate affiliate or constituent party, any guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyguarantor), and has not acquired and shall not acquire obligations or securities of its Affiliatesaffiliates or any constituent party.
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party or any guarantor to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct such constituent party or supplement any provision in a manner consistent with guarantor without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on constituent party and, to the financial statement of any other Person; providedextent required by law, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or Borrower, any constituent party of Borrower, any guarantor or any Affiliate of any constituent party or guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own namechecks.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, merger in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party, any guarantor, or any Affiliate of any constituent party or guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(m) 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 Affiliate or constituent party, any guarantor, or any Affiliate of any constituent party or guarantor, or any other Personperson.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(o) The organizational documents of If Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of is a receiver, liquidator or any similar official for Borrower limited partnership or a substantial portion of limited liability company, each general partner or managing member (each, an "SPC PARTY") shall be a corporation whose sole asset is its assets or propertiesinterest in Borrower and each such SPC Party will at all times comply, (iv) make an assignment for the benefit of creditorsand will cause Borrower to comply, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any with each of the foregoingrepresentations, warranties, and covenants contained in this Section 8.28 as if such representation, warranty or covenant was made directly by such SPC Party.
(p) The organizational documents of Borrower shall provide that, as long as any portion at all times cause there to be at least one duly appointed member of the Debt remains outstandingboard of directors (an "INDEPENDENT DIRECTOR") of each SPC Party in Borrower reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, except as expressly permitted pursuant to and may not have been at any time during the terms of the Loan Documents, preceding five years (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”)shareholder of, or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower an officer, director, partner or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transfereeemployee of, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesaffiliates, (iii) made a person or other entity controlling or under common control with any assignment for the benefit of Borrower’s creditors such shareholder, partner, supplier or customer, or (iv) admitted in writing a member of the immediate family of any such shareholder, officer, director, partner, employee, supplier or customer of Borrower’s inability . As used herein, the term "control" means the possession, directly or indirectly, of the power to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency direct or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to cause the relief from debts or direction of the protection of debtors generally, (B) seek or consent to the appointment management and policies of a receiverperson or entity, liquidatorwhether through ownership of voting securities, assignee, trustee, sequestrator, custodian by contract or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become dueotherwise.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Winston Hotels Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, Property and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will in all material respects conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits affiliates or constituent parties, any guarantor (a "Guarantor") of the Debt or any part thereof or any affiliate of any constituent party of Borrower or any Affiliate of any constituent partyGuarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate affiliate or constituent party, any Guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyGuarantor), and has not acquired and shall not acquire obligations or securities of its Affiliatesother than immaterial advances for tenant improvements pursuant to Leases executed in accordance with this Agreement.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence, .
(iviii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not permit any constituent party or Guarantor to, amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust, operating agreement or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect Borrower's existence as a single purpose entity.
(hix) Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate, any constituent party, any Guarantor or any affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Borrower has maintained and will endeavor 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.
(kxii) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) 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 Affiliate affiliate or constituent party, any Guarantor, or any affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) Borrower shall at all times have one member (the "SPE Member") who is a "single purpose entity" and shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE Member.
(xvii) The organizational documents charter of Borrower the SPE Member shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five (and Borrower agrees that it will not), 5) years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become duemember of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer or employee of, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets members, subsidiaries or properties to be partitioned, to cause the appointment Affiliates (except as an Independent Director on any of a receiver for all or any portion their boards of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallydirectors), (ii) sought a customer or consented to the appointment supplier who derives more than ten percent (10%) of a receiver, liquidator, assignee, trustee, sequestrator, custodian its purchases or revenues from its activities with Borrower or any similar official for Borrower of its members, subsidiaries or for all or Affiliates (except as an Independent Director on any portion of Borrower’s assets or propertiestheir boards of directors), (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such member, supplier or customer or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolvemember, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all customer or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth in this Section 3.13SPE Member. As used herein, without the prior consent term "control" means the possession, directly or indirectly, of Lender in its sole discretionthe power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into and performing its obligations under this Agreement with the Loan DocumentsLender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to those that it than would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (ii) shall be (A) outstanding not more than sixty (60) days, and (B) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty or the direct interests in Borrower without Lender’s prior written consent, which consent may be granted or withheld in Lender’s sole and absolute discretion.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and Borrower has not, will not (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writingand (B) following a Securitization of the Loan, Borrower will not the applicable Rating Agencies have issued a Rating Agency Confirmation, amend, modify or otherwise change its operating agreement or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsdocuments.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall may file its own consolidated tax returns (except with those of its Affiliates to the extent that Borrower is treated as a “disregarded entity” for any applicable tax purposes and was laws or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawregulations so require. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did has not assume, and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that the business and affairs of Borrower shall be managed by or under the direction of Sole Member, and at all times there shall be at least two (2) duly appointed managers (each, an “Independent Manager”) of Borrower, who each have at least three (3) years prior employment experience and continue to be employed as an independent director, independent manager or independent member 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 Managers, another nationally-recognized company that provides such services and which is reasonably approved by Lender, who are not on the board of directors or managers of more than two (2) Affiliates of Borrower, and who are not, and have never been, and will not while serving as Independent Manager be, any of the following: (i) a stockholder, director, manager, officer, employee, partner, equityholder, member, attorney or counsel of Borrower or any Affiliate of Borrower or any direct or indirect equity holder of Borrower or any Affiliate of Borrower (other than (x) as an Independent Manager of an Affiliate of Borrower that is not in the direct chain of ownership of Borrower and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Manager is employed by a company that routinely provides professional Independent Managers or directors or (y) pursuant to an express provision in Borrower’s operating agreement providing for the appointment of such Independent Manager to become a “special member” upon Sole Member ceasing to be a member of Borrower), (ii) a creditor, customer, supplier, service provider (including provider of professional services) or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower (other than a nationally-recognized company that routinely provides professional Independent Managers and other corporate services to Borrower or any of its Affiliates in the ordinary course of its business), (iii) a member of the immediate family of any such stockholder, director, manager, officer, employee, partner, equityholder, member, creditor, customer, supplier, service provider or other Person, or (iv) a Person or other entity controlling or under common control with any of (i), (ii) or (iii) above. A natural person who otherwise satisfies the foregoing definition and satisfies subsection (i) by reason of being the Independent Manager of a “special purpose entity” affiliated with Borrower shall be qualified to serve as an Independent Manager of Borrower, provided that the fees that such individual earns from serving as Independent Managers of Affiliates of the Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. In addition, the organizational documents of Borrower shall provide that no Independent Manager of Borrower may be removed or replaced unless Borrower provides Lender with not less than three (3) Business Days’ prior written notice of (a) any proposed removal of an Independent Manager, together with a statement as to the reasons for such removal, and (b) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Manager. As used in this paragraph, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise. In addition, the organizational documents of Borrower shall also provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” provisions of such organizational documents.
(p) The organizational documents of Borrower shall provide that the Borrower shall not take any action which, under the terms of any certificate of formation, limited liability company operating agreement or any voting trust agreement, requires an unanimous vote of the members of Borrower unless at the time of such action there shall be at least two (2) members of the board of directors who are Independent Managers (and such Independent Managers have participated in such vote). The organizational documents of the Borrower shall provide that Borrower will not (and Borrower agrees that it will not), without the unanimous written consent of its members including the Independent Managers (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for of Borrower or a substantial portion part of its assets or propertiesbusiness, (iii) take any action that might cause such entity to become insolvent, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s its inability to pay its debts generally as they become due, (vi) declare or effectuate a moratorium on the payment of any obligations, or (vivii) take any action in furtherance of any of the foregoing.
(p) The . In addition, the organizational documents of Borrower shall provide that, as long as when voting with respect to any portion matters set forth in the immediately preceding sentence of this Section 3.1.24(p), the Debt remains outstandingIndependent Managers shall consider only the interests of Borrower, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrowerincluding its creditors.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt Obligations remains outstanding, upon the occurrence of any event that causes Sole Member to cease to be a member of Borrower (other than (i) upon an assignment by Sole Member of all of its limited liability company interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (ii) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), each of the persons acting as an Independent Manager of Borrower shall, without any action of any Person and simultaneously with Sole Member ceasing to be a member of Borrower, automatically be admitted as members of Borrower (in each case, individually, a “Special Member” and collectively, the “Special Members”) and shall preserve and continue the existence of Borrower without dissolution. The organizational documents of Borrower shall further provide that for so long as any portion of the Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless (i) a successor Special Member has been admitted to Borrower as a Special Member following delivery to Lender of reasonable prior written notice of same (but in any event, not less than two (2) days prior written notice), and (ii) such successor Special Member has also accepted its appointment as an Independent Manager in a writing delivered to Lender.
(r) The organizational documents of Borrower shall provide that, as long as any portion of the Obligations remains outstanding, except as expressly permitted pursuant to the terms of this Agreement, (i) Sole Member may not resign, and (ii) no additional member shall be admitted to Borrower.
(s) The organizational documents of Borrower shall provide that, as long as any portion of the Obligations remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1I) to continue the existence of Borrower, and (2II) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member or a Special Member shall not cause such Sole Member or Special Member, respectively, to cease to be a member of Borrower and upon the occurrence of such an event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its the assets and properties of Borrower in an orderly manner), and its the assets and properties of Borrower shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, each of Sole Member and the Special Members shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.an
Appears in 1 contract
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Such Borrower does not own, and will not own any asset or property other than (A) the PropertyProperty owned by it, and (B) incidental personal property necessary for related to or arising from the ownership, leasing, management ownership or operation of the such Property.
(bii) Such Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasingdevelopment, management and operation of the Property owned by it and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party guarantor of Borrower the Debt or any part thereof or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to no less favorable than those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Such Borrower has not incurred incurred, and such Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the Debt, Permitted Indebtedness. No indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(ev) Such Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borroweror constituent party, any constituent party of Borrower Guarantor or any Affiliate of any constituent partyparty or Guarantor), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Such Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Such Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence.
(viii) Such Borrower will not, (i) Borrower has not terminated or failed to comply with and will not terminate permit any constituent party or fail to comply with the provisions of its organizational documentsGuarantor to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust, or other organizational documents except: (i) to cure any obvious ambiguity of such Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect such Borrower's existence as a single purpose entity.
(hix) Such Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower constituent party and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets Borrower 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate, any constituent party, any Guarantor or any Affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Such Borrower has maintained and will endeavor 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.
(kxii) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Such Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiv) Such 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 Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person.
(nxv) Such Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) Each Borrower which is a limited liability company shall at all times have one member, and each Borrower which is a limited partnership shall at all times have a general partner (the "SPE") who is a "single purpose entity" and which shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE.
(xvii) The organizational documents charter of Borrower each SPE shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take an officer or employee of, any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian any Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesaffiliates, (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such shareholder, supplier or customer, or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; director of such SPE. As used herein, the term "control" means the possession, directly or (iii) engage in any other business activityindirectly, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13power to direct or cause the direction of the management and policies of a person or entity, without the prior consent whether through ownership of Lender in its sole discretionvoting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Prime Retail Lp)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) a. Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, Property and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) b. Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management management, operation and operation financing of the Property and Borrower will conduct lawful business that is incident, necessary and operate its business as presently conducted and operatedappropriate to accomplish the foregoing.
(c) c. Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to it than those that would be available on an arm’sarm's-length basis from an unrelated third party.
(d) d. Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) e. Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) f. Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, in each case provided that there exists sufficient cash flow from the Property to do so.
(gi) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) except as previously disclosed to Lender in writing, Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents and (iiiiv) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Organizational Documents.
(h) h. Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s 's assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s 's assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s 's own separate balance sheet. Borrower’s 's assets will not be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s 's assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such B) such assets shall be listed on Borrower’s 's own separate balance sheet. Borrower has filed and shall file its own tax returns (except to the extent that Borrower was or is treated as a “"disregarded entity” " for tax purposes and was or is not required to file tax returns under applicable law), ) and has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawPerson other than its parent. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) i. Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) j. Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) k. Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) l. Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) m. 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 Affiliate or constituent party or any other Person.
(n) n. Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) o. The organizational documents Organizational Documents of Borrower shall provide that the business and affairs of Borrower shall be managed by or under the direction of a manager designated by Guarantor. In addition, the Organizational Documents of Borrower shall provide an express acknowledgment that Lender is an intended third-party beneficiary of the "special purpose" and "separateness" provisions of such Organizational Documents.
p. If requested by Lender at any time when a Default or an Event of Default is outstanding, Borrower shall amend its Organizational Documents so that following such amendment the manager of Borrower shall when voting with respect to any of the matters set forth below in Section 3.1.25(q), consider only the interests of Borrower, including its creditors.
q. The Organizational Documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), without the unanimous consent of its board of directors or managers, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iii) take any action that might cause Borrower to become insolvent, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s 's inability to pay its debts generally as they become due, (vi) declare or effectuate a moratorium on the payment of any obligations, or (vivii) take any action in furtherance of any of the foregoing.
(p) r. The organizational documents Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) Guarantor may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) s. The organizational documents Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Oregon Limited Liability Company Act (the “"Act”"), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member Guarantor to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member Guarantor of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents Organizational Documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member Guarantor and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents Organizational Documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member Guarantor shall not cause such Sole Member Guarantor to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 63.625 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member Guarantor shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) t. Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.133.1.25, and (ii) all of the organizational documents Organizational Documents of Borrower.
(s) u. Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent Guarantor access to its bank accounts.
(t) v. Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) w. Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and it. Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) x. Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s 's assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors 's creditors, or (iv) admitted in writing Borrower’s inability taken any action that might have caused Borrower to pay become insolvent. Without the unanimous consent of all of its debts generally directors or managers, as they become due. applicable, Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s 's assets or properties, (C) make any assignment for the benefit of Borrower’s creditors 's creditors, or (D) admit in writing Borrower’s inability take any action that might cause Borrower to pay its debts generally as they become dueinsolvent.
(w) y. Borrower has maintained and will maintain an arm’sarm's-length relationship with its Affiliates.
(x) z. Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, including shared office space.
(y) aa. Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, the Administrative Agent and each Lender that since as of the date of its formation and at all times on and after the date hereof Closing Date and until such time as the Debt Revolving Credit Commitments shall be have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, owns and will not own any asset or property other than (Ai) the Property, Pledged Assets and other Collateral and (Bii) incidental personal property necessary for the ownership, leasing, management or operation ownership of the PropertyPledged Assets and other Collateral.
(b) Borrower has not engaged and or will not engage in any business or activity other than the acquisition, ownership, leasing, ownership and management and operation of the Property Pledged Assets and other Collateral, and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has had, now has, and will have as its only general partner, a special purpose limited liability company that is in compliance with the requirements for a “single purpose entity” that are set forth in Schedule D to the limited liability company agreement of Ashford Finance Subsidiary II General Partner LLC as in effect on the date hereof.
(d) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in connection with the acquisition of Pledged Assets or in the ordinary course of business and 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 terms and conditions. Nothing contained in this Section 5.30 or any other provision of the Loan Documents shall restrict or prevent, upon the release of any Pledged Asset from the Liens created under the Loan Documents in compliance with this Agreement and the other Loan Documents, Borrower’s transfer or conveyance of such released Pledged Asset to an unrelated third partyAffiliate of Borrower.
(de) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the PropertyLoans contemplated hereby.
(ef) Except for the Pledged Assets, Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent partyBorrower), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fg) Borrower has beenhad, isnow has, and will endeavor have a limited partnership agreement that provides that Borrower will not, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full: (A) dissolve, merge, liquidate or consolidate; (B) sell all or substantially all of its assets (as applicable); (C) engage in any other business activity or amend its organizational documents with respect to remain the matters set forth in this section; or (D) without the affirmative vote of the independent member of the general partner of Borrower, take any Bankruptcy Action with respect to itself or any other entity in which it has a direct or indirect legal or beneficial ownership interest.
(h) Borrower is solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its own assets as the same shall become due.
(gi) Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and Borrower will not: (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender the Administrative Agent has consented to the same in writing, Borrower will not amend, modify or otherwise change in any material respect its organizational documents except: (i) to cure any obvious ambiguity Governing Documents, including, without limitation, the single purpose, separateness or (ii) to correct bankruptcy remote provisions or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsrequirements thereof.
(hj) Borrower has maintained and will maintain all of its booksaccounts, records, financial statements books and bank accounts records separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(ik) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) and has conducted and shall conduct business solely in its own name, (iv) has not identified and . The requirements of this Section 5.30 shall not identify itself prevent Borrower from being treated as an entity which is “disregarded” from Ashford OP for income or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own nametax purposes.
(jl) Borrower has maintained and will endeavor 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.
(km) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, merger or mergersale of all or substantially all of its assets, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(ln) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mo) 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 Affiliate or constituent party of Borrower or any other Person.
(np) Other than as required or permitted herein, Borrower did has not assume, assumed or guaranteed and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. , and Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oq) Borrower will not without the written consent of its general partner and the unanimous written consent of all of the managers of its general partner take any Bankruptcy Action.
(r) The Governing Documents of the general partner of Borrower (“Borrower GP”) shall provide that, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full, upon the occurrence of any event that causes the sole member of Borrower GP to cease to be a member of Borrower GP (other than (i) upon an assignment by the sole member of Borrower GP of all of its limited liability company interest in Borrower GP and the admission of the transferee, if permitted pursuant to the Governing Documents of Borrower GP and the Loan Documents, or (ii) the resignation of the sole member of Borrower GP and the admission of an additional member of Borrower GP, if permitted pursuant to the Governing Documents of Borrower GP and the Loan Documents), a Person designated as a special member of Borrower GP shall, without any action of any Person and simultaneously with the sole member ceasing to be a member of Borrower GP, automatically be admitted as the sole member of Borrower GP (the “Special Member”) and shall preserve and continue the existence of Borrower GP without dissolution. The organizational documents of Borrower GP shall further provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as so long as any portion of the Debt remains Revolving Credit Commitments and/or the Secured Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless a successor Special Member has been admitted to Borrower GP as a Special Member.
(s) The Governing Documents of Borrower GP shall provide that, until such time as the Revolving Credit Commitments shall have been terminated and the Secured Obligations (other than surviving contingent obligations for which no demand for payment has been made) shall have been paid in full, except as expressly permitted pursuant to the terms of the Loan Documentsthis Agreement, (i) Guarantor, as the sole member (the “Sole Member”) of Borrower GP may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accountsGP.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants consultants, agents and agents employees (if any) from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(wu) Borrower has maintained and will maintain an arm’s-length relationship relationships with its AffiliatesAffiliates in compliance with Section 8.7 hereof.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(yv) Except to Lender in connection with the LoanLoans, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, of any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bbw) Borrower will consider the interests of Borrower’s creditors in connection with all limited partnership actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Revolving Credit Loan and Security Agreement (Ashford Hospitality Trust Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a1) Propco Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property and (2) Opco Borrower does not own and will not own any asset or property other than the personalty and other assets owned by it necessary for the operation of the Property.
(b1) Propco Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and (2) Opco Borrower will not engage in any business other than the management and operation of the Property, and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, reasonable (taking into account all facts and circumstances) and either substantially similar to those that would be available on an arm’s-length basis from an unrelated with third partyparties other than any such party or a capital contribution or distribution.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of 5% of the outstanding principal amount of the Loan in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above and (z) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty other than Indebtedness of the type described in and subject to the requirements of clause (iii) of this clause (d).
(e) Except as expressly contemplated by the Loan Documents with respect to the other Borrower and the Cross Borrower, Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of any of its Affiliates.
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay all of its debts and liabilities (including, as applicable, a fairly allocated portion of shared personnel and overhead expenses) only from its own assets and as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities applicable to Borrower and preserve its separate Borrower’s existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates or makes such organizational documents inconsistent with the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements (it being acknowledged that the agent under the Cash Management Agency Agreement shall be continuously able to produce separate balance sheets of the Borrowers) and (except as contemplated in the Cash Management Agency Agreement) bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement from those of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements (and/or in Annual Reports on Form 10-K filed with U.S. Securities and Exchange Commission in which such financial statements are contained) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall are continuously able to be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable lawreturns), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own namename (except with respect to payments or communications made on behalf of the Borrower by the counterparty to the Cash Management Agency Agreement, in which event, such counterparty shall nevertheless identify the Borrower as the party on whose behalf the payment or communication is being made).
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Except as expressly contemplated by the Loan Documents and the Cash Management Agency Agreement, Borrower has not commingled and will not commingle the funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Except as expressly contemplated by the Loan Documents with respect to the other Borrower did and the Cross Borrower, Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy or assets hold out its credit as being available to satisfy the debts or obligations of any other Person.
(oi) The organizational documents If Borrower is a limited partnership or a limited liability company, (other than a single member limited liability company that satisfies all of the requirements of Section 3.1 ..24(o)(ii)), each general partner or managing member (each, an “SPC Party”) of Borrower shall provide be a corporation or single member limited liability company that satisfies all of the requirements of Section 3.1 ..24(o)(ii) whose sole asset is a direct interest in Borrower of at least 0.5% (or 0.1% if Borrower is an entity formed under the laws of Delaware) and each such SPC Party will not at all times comply with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party (substituting the term “SPC Party” for the term ‘Borrower” throughout) and will cause Borrower agrees that it will notto comply with this Section 3.1.24 (except for subsections (a), (ib), (d), (n) file and (x)). Upon the withdrawal or consent the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose constituent documents are substantially similar to those of the withdrawing or disassociating SPC Party and deliver a new non-consolidation opinion to the filing Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners. If Borrower is a limited partnership, Borrower shall have at least one genera] partner. If Borrower is a limited liability company (other than a single-member limited liability company that satisfies all of the requirements of Section 3.1 .24(o)(ii)), Borrower shall have at least one (1) managing member. An SPC Party shall be organized for the sole purpose of owning a direct interest in the Borrower, shall own no other interests in any petitionentity, either voluntary or involuntary, to take advantage and shall not incur indebtedness except as it may be liable for the debts of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the Borrower in its capacity as general partner of the Borrower.
(ii) seek or consent to If Borrower is a single member limited liability company (“single member limited liability company” meaning a limited liability company having only one equity member), Borrower shall be a limited liability company organized under the appointment laws of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, Delaware and shall have either (ivA) make an assignment for the benefit of creditors, two (v2) admit in writing Borrower’s inability to pay its debts generally as they become due, non-equity members or (viB) take any action in furtherance at least two springing members, one of any which, upon the dissolution of such sole member or the withdrawal or the disassociation of the foregoingsole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents Borrower or its SPC Party shall at all times cause there to be at least two duly appointed Independent Directors, who are provided by a nationally recognized company that provides professional independent directors, of each SPC Party and of Borrower if Borrower is a single member limited liability company. As used herein, “Independent Director” shall provide thatmean a natural person serving as a director of a corporation or manager of a limited liability company who is not at the time of initial appointment, as long as or at any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resigntime while serving, and has not been at any time during the preceding five (ii5) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstandingyears: (ia) Borrower shall be dissolved, and its affairs shall be wound up, only upon a stockholder or director (with the first to occur exception of serving as the following: (A) the termination of the legal existence of the last remaining member Independent Director of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining SPC Party that is an SPC Party or managing member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”Borrower), trustee, officer, employee, partner, member, attorney or counsel of SPC Party, Borrower or any affiliate of either of them; (b) a creditor, customer, supplier or other person who derives any of its purchases or revenues from its activities with SPC Party, Borrower or any affiliate of either of them; (c) a person or other entity controlling or under common control with any Person excluded from serving as Independent Director under subparagraph (a) or (Bb); or (d) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of the immediate family of any Person excluded from serving as Independent Director under subparagraph (a) or (b). As used in this definition, the term “affiliate” means any person controlling, under common control with, or controlled by the person in question; and 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. A natural person who satisfies the foregoing definition other than subparagraph (b) shall not be disqualified from serving as an Independent Director if such individual has been provided by a nationally-recognized company that provides professional independent directors. A natural person who otherwise satisfies the foregoing definition except for being the Independent Director of a “special purpose entity” affiliated with Borrower or that causes Sole Member to cease to SPC Party shall not be a member disqualified from serving as an Independent Director of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests or SPC Party if such “special purpose entity” does not own a direct or indirect equity interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents or in any co-borrower of Borrower and the Loan Documentsif such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of this paragraph, or (B) the resignation of Sole Member and the admission of a “special purpose entity” is an additional member of Borrowerentity, if permitted pursuant to the whose organizational documents of Borrower and the Loan Documents), contain restrictions on its activities substantially similar to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, those set forth in Section 18-804 3.1.24 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrowerthis Agreement.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, leasing managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to it than those that would be available on an arm’s-length basis from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gi) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents and (iiiiv) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, the Rating Agencies have issued a Rating Agency Confirmation in connection therewith, Borrower will not amend, modify or otherwise change its organizational documents except: (i) Organizational Documents with respect to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement “single purpose entity” representations and the other Loan Documentscovenants set forth therein.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such B) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has filed (if Borrower has filed) and shall file its own tax returns (except to the extent that Borrower was or is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), ) and has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, foregoing and (ii) has not owned, does not own, own and will not own any asset or property other than (A) the Property, Property and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property. Since its formation and through the date hereof, Borrower has not owned any property or conducted any business other than activities related to its ownership of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Except for capital contributions and capital distributions permitted under the terms and conditions of its limited liability company agreement, Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and the Existing Loan (which Existing Loan is being assigned to Lender or paid off in connection with the Loan) and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding 2% of the original aggregate principal amount of the Loan and the Mezzanine Loan at any one time; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business (such Indebtedness which satisfies the conditions of the preceding clauses (ii)(A) and (ii)(B), “Permitted Trade Payables”). No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, however, that this provision shall not require any direct or indirect equity owner of Borrower to make any capital contributions to Borrower.
(gi) Borrower has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents other than as reviewed and approved by Lender on or prior to the Closing Date, and (iiiiv) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, the Rating Agencies have issued a Rating Agency Confirmation in connection therewith, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Organizational Documents.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, that (i) if applicable, (i) appropriate notation (e.g., footnote) were was made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such B) such assets shall be listed on Borrower’s own separate balance sheet. Borrower has filed and shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), ) and has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor 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 this provision shall not require any direct or indirect equity owner of Borrower to make any capital contributions to Borrower.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its Borrower’s assets or any sale or other transfer by Borrower outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents Organizational Documents of Borrower shall provide that the business and affairs of Borrower shall be managed by or under the direction of the Sole Member, and at all times there shall be at least two (2) duly appointed individuals as directors or managers (each, an “Independent Director”) of Borrower, each of whom (i) has at least three (3) years prior employment experience and continues to be employed as an independent director, independent manager or independent member 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, independent managers and independent members, another nationally-recognized company that provides such services and which is reasonably approved by Lender; (ii) is not, and has never been, on the board of directors or managers of any Affiliate of Borrower; and (iii) is not, and has never been, and will not, while serving as an Independent Director be, any of the following: (A) a stockholder, director, manager, officer, employee, partner, member, attorney or counsel of Borrower, any Affiliate of Borrower or any direct or indirect equity holder of any of them, (B) a creditor, customer, supplier, service provider (including provider of professional services) or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower (other than a nationally-recognized company that routinely provides professional independent directors, independent managers or independent members and other corporate services to Borrower or any Affiliate of Borrower in the ordinary course of its business), (C) a member of the immediate family of any such stockholder, director, manager, officer, employee, partner, member, creditor, customer, supplier, service provider or other Person, or (D) a Person controlling or under common control with any of subclauses (A), (B) or (C) above. A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) by reason of (I) being, having been or becoming an Independent Director of an Affiliate of Borrower that is not in the direct chain of ownership of Borrower or Sole Member and that is required by a creditor to be a “single purpose entity”; provided that such Independent Director is, was or will be employed by a company that routinely provides professional independent directors, independent managers or independent members, or (II) being, having been or becoming a member of Borrower pursuant to an express provision in Borrower’s operating agreement providing for the appointment of such Independent Director as a member of Borrower upon the occurrence of any event pursuant to which Sole Member ceases to be a member of Borrower (including the withdrawal or dissolution of Sole Member). A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) or (iii)(B) by reason of being, having been or becoming an Independent Director of a “single purpose entity” affiliated with Borrower; provided that the fees or other compensation that such individual earns by serving as an Independent Director of one or more Affiliates of Borrower in any given year constitute, in the aggregate, less than five percent (5%) of such individual’s income for such year. The Organizational Documents of Borrower shall provide that no Independent Director of Borrower may be removed or replaced without Cause, and unless Borrower provides Lender with not less than three (3) Business Days’ prior notice of (1) any proposed removal of any Independent Director, together with a statement as to the reasons for such removal, and (2) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the Organizational Documents of Borrower relating to an Independent Director. In addition, the Organizational Documents of Borrower shall provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” and “separateness” provisions of such Organizational Documents. As used in this paragraph, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise and the terms “controlled” and “controlling” shall have correlative meanings. As used in this paragraph, the term “single purpose entity” shall mean a Person whose Organizational Documents contain, and who covenants that such Person shall comply or cause compliance with, provisions substantially similar to those set forth in this Section 3.1.24.
(p) The Organizational Documents of Borrower shall provide that the directors or managers of Borrower shall not take any action which, under the terms of any Organizational Documents (including, if applicable, any voting trust agreement with respect to any common stock), requires a unanimous vote of the directors or managers of Borrower unless, at the time of such action, there shall be at least two (2) directors or managers who are Independent Directors (and such Independent Directors have participated in such vote). The Organizational Documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), without the unanimous consent of its directors or managers, including the consent of each Independent Director, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iii) take any action that might cause Borrower to become insolvent, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, (vi) declare or effectuate a moratorium on the payment of any obligations, or (vivii) take any action in furtherance of any of the foregoing. In addition, the Organizational Documents of Borrower shall provide that, when voting with respect to any of the matters set forth in the immediately preceding sentence of this Section 3.1.24(p), the Independent Directors shall consider only the interests of Borrower, including its creditors.
(pq) The organizational documents Organizational Documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining sole member of Borrower to cease to be a member of Borrower or that causes (“Sole Member Member”) to cease to be a member of Borrower (other than (Ai) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents Organizational Documents of Borrower and the Loan Documents, or (Bii) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents Organizational Documents of Borrower and the Loan Documents), to each of the fullest extent permitted by applicable law, the personal representative persons acting as an Independent Director of such last remaining member shall be authorized to, and Borrower shall, within ninety (90) days after the occurrence without any action of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, any Person and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of simultaneously with Sole Member shall not cause such Sole Member to cease ceasing to be a member of Borrower, automatically be admitted as a member of Borrower (a “Special Member”) and upon shall preserve and continue the occurrence existence of such event, the business Borrower without dissolution. The Organizational Documents of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities further provide that for so long as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets Debt is outstanding, no Special Member may resign or properties of Borrower, transfer its rights as a Special Member unless (A) a successor Special Member has been admitted to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file as a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13Special Member, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.successor Special M
Appears in 1 contract
Sources: Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Such Borrower does not own, and will not own any asset or property other than (A) the PropertyProperty owned by it, and (B) incidental personal property necessary for related to or arising from the ownership, leasing, management ownership or operation of the such Property.
(bii) Such Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasingdevelopment, management and operation of the Property owned by it and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party guarantor of Borrower the Debt or any part thereof or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to no less favorable than those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Such Borrower has not incurred incurred, and such Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the Debt, Permitted Indebtedness. No indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(ev) Such Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borroweror constituent party, any constituent party of Borrower Guarantor or any Affiliate of any constituent partyparty or Guarantor), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Such Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Such Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence.
(viii) Such Borrower will not, (i) Borrower has not terminated or failed to comply with and will not terminate permit any constituent party or fail to comply with the provisions of its organizational documentsGuarantor to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of such Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect such Borrower's existence as a single purpose entity.
(hix) Such Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower constituent party and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets Borrower 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate, any constituent party, any Guarantor or any Affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Such Borrower has maintained and will endeavor 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.
(kxii) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Such Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) Such 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 Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) Such Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) Each Borrower which is a limited liability company shall at all times have one member, and each Borrower which is a limited partnership shall at all times have a general partner (such member or general partner being referred to herein as the "SPE") which is a "single purpose entity" and which shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by such SPE.
(xvii) The organizational documents charter of Borrower each SPE shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take an officer or employee of, any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian any Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesaffiliates, (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such shareholder, supplier or customer, or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; director of such SPE. As used herein, the term "control" means the possession, directly or (iii) engage in any other business activityindirectly, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13power to direct or cause the direction of the management and policies of a person or entity, without the prior consent whether through ownership of Lender in its sole discretionvoting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Prime Retail Lp)
Single Purpose. (a) Borrower hereby represents with respect to Borrower, Principal and Mortgage Borrower that it:
(i) each of Borrower, Principal and Mortgage Borrower is and always has been duly formed, validly existing, and in good standing in the state of its incorporation and in all other jurisdictions where it is qualified to do business;
(ii) except for Permitted Encumbrances (as detailed on Schedule VII of the Mortgage Loan Agreement) or Permitted Encumbrances (as defined in this Agreement), has no judgments or liens of any nature against Mortgage Borrower or Borrower except for tax liens not yet due;
(iii) each of Borrower, Principal and Mortgage Borrower is in material compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement or the Mortgage Loan Agreement, has received all permits necessary for it to operate;
(iv) neither Borrower, Principal nor Mortgage Borrower is involved in any dispute with any taxing authority;
(v) each of Borrower, Principal and Mortgage Borrower has paid all taxes which it owes;
(vi) Mortgage Borrower has never owned any real property other than the Property and personal property necessary or incidental to its ownership or operation of the Property and has never engaged in any business other than the ownership and operation of the Property. Borrower does not own and will not own any asset or property other than (i) the Pledged Company Interests and (ii) incidental personal property necessary for the ownership of such interests. Principal does not own and will not own any asset or property other than (i) the Pledged Company Interests (as defined in the Mezzanine B Loan Agreement) and (ii) incidental personal property necessary for the ownership of such interests;
(vii) each of Borrower, Principal and Mortgage Borrower is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that is still pending or that resulted in a judgment against it that has not been paid in full;
(viii) each of Borrower, Principal and Mortgage Borrower has provided Lender with complete financial statements that reflect a fair and accurate view of the entity’s financial condition;
(ix) Borrower has obtained a current Phase I environmental site assessment (“ESA”) for the Property prepared by EBI Consulting and to Borrower’s best knowledge, the ESA has not identified any recognized environmental conditions that require further investigation or remediation; and
(x) Mortgage Borrower has no material contingent or actual obligations not related to the Property. Borrower has no material contingent or actual obligations not related to the Collateral. Principal has no material contingent or actual obligations not related to the Collateral (as defined in the Mezzanine B Loan Agreement).
(b) Borrower hereby represents and warrants to, to and covenants with, with Lender that since as of the date of its formation and at all times on and after the date hereof and until such time as the Debt debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Mortgage Borrower does not own, own and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property. Borrower does not own and will not own any asset or property other than (i) the Pledged Company Interests and (ii) incidental personal property necessary for the ownership of such interests. Principal does not own and will not own any asset or property other than (i) the Pledged Company Interests (as defined in the Mezzanine B Loan Agreement) and (ii) incidental personal property necessary for the ownership of such interests.
(bii) Mortgage Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Mortgage Borrower will conduct and operate its business as presently conducted and operated. Borrower will not engage in any business other than the ownership of the related Pledged Company Interests and will conduct and operate its business as presently conducted and operated. Principal will not engage in any business other than the ownership of the related Pledged Company Interests (as defined in the Mezzanine B Loan Agreement) and will conduct and operate its business as presently conducted and operated.
(ciii) neither Borrower, Principal nor Mortgage Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, Principal or Mortgage Borrower, any constituent party of Borrower, Principal, Mortgage Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’s-length basis from an unrelated with third parties other than any such party.
(div) Neither Borrower has not incurred nor Mortgage Borrower will (and Borrower agrees it will not incur permit Mortgage Borrower to) incur, create or assume any Indebtedness other than (i) the DebtDebt and (ii) in case of Mortgage Borrower, (A) the Mortgage Loan, (B) unsecured trade payables and operational of Mortgage Borrower debt not evidenced by a note and in an aggregate amount not exceeding $500,000 at any one time, and (C) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $100,000 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii)(B) and (ii)(C) shall be (x) with respect to subclause (ii)(B), paid within sixty (60) days of the date incurred, and with respect to subclause (ii)(C), paid when it is due and payable, and (y) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Mortgage Loan may be secured (senior, subordinate or pari passu) by the Property.
(ev) Neither Borrower has not made and nor Mortgage Borrower will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent partyMortgage Borrower), and has not acquired and shall not acquire any obligations or securities of its Affiliates.
(fvi) each of Borrower has been, is, and Mortgage Borrower is and will endeavor to remain solvent and each of Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and Mortgage Borrower will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its own assets as the same shall become due.
(gvii) Borrower has done or caused to be done, and each Significant Party will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed and no Significant Party will not, nor will any Significant Party permit any constituent party to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of such Significant Party or such constituent party without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender’s consent.
(hviii) Borrower has maintained and Each Significant Party will (i) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; providedconstituent party, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such not cause or permit its assets were listed on Borrower’s own separate balance sheet. Borrower’s assets will not to be listed as assets on the financial statement of any other Person; , provided, however, that Borrowersuch Significant Party’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower such Significant Party and such Affiliates and to indicate that Borrowersuch Significant Party’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such B) such assets shall be listed on Borrowersuch Significant Party’s own separate balance sheet. Borrower shall , (iii) file its own tax returns (except to the extent that Borrower such Significant Party is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, Person and has paid and shall will pay any all of its own taxes as required to be paid under applicable law. Borrower has maintained and shall , (iv) such Significant Party maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, Each Significant Party will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (iithereof) has corrected and shall Each Significant Party will correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(jx) Borrower has maintained and Each Significant Party will endeavor 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.
(kxi) Neither Borrower Significant Party nor any constituent party of Borrower has sought andthereof will engage in, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any or sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course assets, of businessSignificant Party.
(lxii) Borrower has not commingled No Significant Party will commingle the funds and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiii) Borrower has maintained and Each Significant Party will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(nxiv) Borrower did not assume, No Significant Party will guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and Each Significant Party does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged Person and will not pledge its assets or properties for the benefit of, or to secure the obligations of, of any other Person.
(zxv) Borrower has had(A) If any Significant Party is a limited partnership or a limited liability company, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash a single member limited liability company), each general partner or investmentmanaging member (each, an “SPC Party”) shall be either a corporation whose sole asset is its interest in such Significant Party, a single-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, member Delaware limited liability company or other entity)a multi-member Delaware limited liability company with two (2) springing members, and Borrower has not owned each such SPC Party will at all times comply, and will not own any cause such Significant Party to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from such Significant Party, such Significant Party shall immediately appoint a new SPC Party whose articles of incorporation or limited liability company operating agreement are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity interest in any other entityowners.
Appears in 1 contract
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Such Borrower does not own, and will not own any asset or property other than (A) the PropertyProperty owned by it as shown on Schedule 5, and (B) incidental personal property necessary for related to or arising from the ownership, leasing, management ownership or operation of the such Property.
(bii) Such Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasingdevelopment, management and operation of the Property owned by it and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party guarantor of Borrower the Debt or any part thereof or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar to no less favorable than those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Such Borrower has not incurred incurred, and such Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except for mechanics' liens arising from Permitted Indebtedness which are being contested in accordance with the requirements of this Agreement, no indebtedness other than the Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the PropertyProperties.
(ev) Such Borrower has not made and will not make any loans or advances to any third party other Person than to employees in the ordinary course of business (including any Affiliate or constituent party, any Guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyGuarantor), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Such Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Such Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership, or limited liability company formalities, as the case may be, and preserve its separate existence.
(viii) Such Borrower will not, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentspermit any constituent party to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of such Borrower or (ii) to correct or supplement any provision such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect such Borrower's existence as a single purpose entity.
(hix) Such Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower constituent party and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets Borrower 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate Affiliate, any constituent party, any Guarantor or any affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Such Borrower has maintained and will endeavor 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.
(kxii) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) Such Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) Such 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 Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) Except as set forth in the Loan Documents, such Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) Each Borrower which is a limited liability company shall at all times have one member, and each Borrower which is a limited partnership shall at all times have a general partner (such member or general partner being referred to herein as the "SPE") which is a "single purpose entity" and which shall at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1(dd) as if such representation, warranty or covenant was made directly by such SPE.
(xvii) The organizational documents charter of Borrower each SPE shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "INDEPENDENT DIRECTOR") reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take an officer or employee of, any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian any Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all affiliates who derives more than 10% of its purchases or any portion of revenues from its activities with the Borrower’s assets or properties, (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such shareholder, supplier or customer, or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties immediate family of any other Person; such shareholder, officer, employee, supplier or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.customer
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, to Lender that since the date as of its formation and at all times on and after the date hereof and covenants with Lender that until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Each Individual Borrower does not own, and will not own any encumbered asset or property other than (A) the PropertyProperties, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperties.
(bii) No Individual Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) No Individual Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party guarantor (a "Guarantor") of Borrower the Debt or any part thereof or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) No Individual Borrower has not incurred incurred, and no Individual Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(ev) No Individual Borrower has not made and no Individual Borrower will not make any loans or advances to any other Person third party (including any Affiliate affiliate or constituent party, any Guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyGuarantor), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Each Individual Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Each Individual Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate or partnership formalities, as the case may be, and preserve its separate existence.
(viii) No Individual Borrower will, (i) Borrower has not terminated nor will any Individual Borrower, permit any constituent party or failed Guarantor to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity of an Individual Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect an Individual Borrower's existence as a single purpose entity.
(hix) Each Individual Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and each Individual Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Each Individual Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any affiliate, any constituent party, any Guarantor or any Affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Each Individual Borrower has maintained and will endeavor 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.
(kxii) Neither No Individual Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of any Individual Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) No Individual Borrower has not commingled will commingle its funds and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) Each Individual 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 Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) No Individual Borrower did not assume, guarantee or become obligated does and no Individual Borrower will hold itself out to be responsible for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) The organizational documents General Partner will at all times comply with each of Borrower the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by the General Partner.
(xvii) The charter of the General Partner shall provide that Borrower will at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding two years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take an officer or employee of, any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Individual Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian any Individual Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesaffiliates, (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such shareholder, supplier or customer. or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth General Partner. As used in this Section 3.13, without the prior consent of Lender in its sole discretion.
4.l (bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entitycc)(xvii), the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and Borrower has not owned and will not own any equity interest in any other policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
Appears in 1 contract
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as either (1) the Debt Obligations shall be paid and performed in fullfull or (2) such Borrower has been released from its obligations under the Loan Documents in connection with a Defeasance Event pursuant to Section 2.5.3 hereof or a substitution of properties pursuant to Section 2.6 hereof:
(a) No Borrower (i) has been, is, and owns or will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the Property, its respective Property and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the such Property.
(b) No Borrower has not engaged and or will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the its respective Property and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of any Borrower, any constituent party of any Borrower or any Affiliate of any constituent party, except in the ordinary course of business and (i) upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party, (ii) in connection with the Loan, and (iii) the Operating Lease to which such Borrower is a party.
(d) Such Borrower has not incurred and will not incur incur, and such Borrower shall not permit Operating Lessee pursuant to the related Operating Lease to incur, any Indebtedness other than (i) with respect to such Borrower, the Debt, and (ii) with respect to Operating Lessee, (A) unsecured trade payables and short term operational debt not evidenced by a note and (B) equipment financing that is not secured by a Lien on any Property except the equipment financed, all of which debt under the preceding clauses (A) and (B) does not and will not exceed in the aggregate, including such trade payables, short term operational debt and equipment financing of Operating Lessee as to the Properties owned by the other Borrowers, $2,000,000.00 at any one time; provided that any Indebtedness incurred pursuant to the preceding clause (ii)(A) shall not be outstanding for more than sixty (60) days (except to the Pool 2 extent that such indebtedness or the validity thereof is being duly and diligently contested by such Borrower in accordance with all applicable Legal Requirements) and shall be incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness, Indebtedness other than the Debt, Debt and Permitted Encumbrances may be secured (senior, subordinate or pari passu) by any of the PropertyProperties.
(e) Such Borrower has not made and will not make any loans or advances to any other Person third party (including Operating Lessee, any other Affiliate of Borrower, such Borrower or any constituent party of Borrower or any Affiliate of any constituent partysuch Borrower), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Such Borrower has been, is, is and will endeavor intends to remain solvent and, except as contemplated by this Agreement wherein Borrowers are jointly and severally liable, such Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) to the extent of available funds from its own assets as the same shall become due.
(g) Such Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and such Borrower will not, nor will such Borrower permit SPE Party to, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, Borrower will not the applicable Rating Agencies have issued a Rating Agency Confirmation in connection therewith, amend, modify or otherwise change any term or provision of its partnership certificate, partnership agreement, articles of incorporation and bylaws, certificate of formation, limited liability company operating agreement, trust or other organizational documents except: (i) that in any way relates or pertains to cure any obvious ambiguity or (ii) to correct or supplement any provision the matters set forth in a manner consistent with the intent of this Agreement and the other Loan DocumentsSection 3.1.24.
(h) Such Borrower has maintained and will maintain all of its separate books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Such Borrower’s assets will not be listed as assets on the financial statement of any other Person; , provided, however, that such Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of such Borrower and such Affiliates and to indicate that such 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 separate balance sheet. Such Borrower shall will file its own tax returns (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Such Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including Operating Lessee, any other Affiliate of such Borrower or any constituent party of such Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own Pool 2 name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Such Borrower has maintained and will endeavor intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of such Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Except as contemplated by this Agreement, such Borrower has not commingled and will not commingle the funds or and other assets of such Borrower with those of any Affiliate or constituent party of such Borrower or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Such 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 Affiliate or constituent party of such Borrower or any other Person.
(n) Except as contemplated by this Agreement, such Borrower did has not assume, assumed or guaranteed and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) Each Borrower’s general partner (the “SPE Party”) shall be a single member limited liability company whose sole asset is its interest in such Borrower and the other Borrowers, and SPE Party (i) will cause each Borrower to comply with each of the representations, warranties and covenants contained in this Section 3.1.24; (ii) will at all times comply with each of the representations, warranties and covenants contained in this Section 3.1.24 (other than subsections (a), (b) and (d)) as if such representation, warranty or covenant was made directly by SPE Party; (iii) will not engage in any business or activity other than owning an interest in each Borrower; (iv) will not acquire or own any assets other than its partnership interest in each Borrower; and (v) will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation) other than unsecured trade payables incurred in the ordinary course of business related to the ownership of an interest in each Borrower that (A) do not exceed at any one time $50,000.00 in the aggregate with respect to all Borrowers, and (B) are paid within thirty (30) days after the date incurred. Upon the withdrawal or the disassociation of SPE Party from Borrowers, Borrowers shall immediately appoint a new SPE Party whose certificate of formation and limited liability company operating agreement is substantially similar to those of such withdrawing SPE Party and deliver a new non-consolidation opinion to Lender and the Rating Agency or Rating Agencies, as applicable, with respect to the new SPE Party and its equity owners.
(p) The organizational documents of Borrower SPE Party shall provide that the business and affairs of SPE Party shall be managed by or under the direction of a board of one or more directors or managers designated by the sole member of SPE Party, and at all times there shall be at least two (2) duly appointed individuals (each, an “Independent Director”) on the board of directors or managers of SPE Party who are reasonably satisfactory to Lender and who shall not have been at the time of such individual’s appointment or at any time while serving as an Independent Director (except pursuant to an express provision in SPE Party’s operating agreement providing for the appointment of such Independent Director to become a “special member” upon the sole member of SPE Party ceasing to be a member of SPE Party), and may not have been at any time during the preceding five (5) years (i) a stockholder, director (other than as an Independent Director of SPE Party), officer, employee, partner, member, attorney or counsel of any Borrower, SPE Party, any Affiliate of any of them or any direct or indirect parent of any of them, (ii) a customer, supplier or other person who derives any of its purchases or revenues from its activities with any Borrower or any Affiliate of any Borrower, (iii) a person Controlling any such stockholder, director, officer, employee, partner, member, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, customer, supplier or other person. A natural person who otherwise satisfies the foregoing definition except for being the independent director or independent manager of a “special purpose entity” affiliated with any Borrower shall not be disqualified from serving as an Independent Director of SPE Party if such person is an independent director or independent manager provided by a nationally-recognized company that provides professional independent directors or managers in the ordinary course of its business. As used herein, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of SPE Party shall provide that the board of directors or managers of SPE Party shall not take any action which, under the terms of any certificate of formation, limited liability company operating agreement or any voting trust agreement, requires an unanimous vote of the board of directors or managers, including the Independent Directors, of SPE Party unless at the time of such action there shall be at least two (2) members of the board of directors or managers who are Independent Directors (and such Independent Directors shall have participated in such vote). SPE Party will not (and Borrower agrees that it will not)without the unanimous written consent of its board of directors or managers, including the Independent Directors, on behalf of itself or any Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower official, (iii) take any action that might cause such entity to become insolvent, or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(pr) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding, upon the occurrence of any event that causes the sole member of SPE Party to cease to be a member of SPE Party (other than (A) upon an assignment by such sole member of all of its limited liability company interests in SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of SPE Party and the Loan Documents, or (B) the resignation of such sole member and the admission of an additional member of SPE Party, if permitted pursuant to the organizational documents of Pool 2 SPE Party and the Loan Documents), one of the persons acting as an Independent Director of SPE Party shall, without any action of any Person and simultaneously with the sole member of SPE Party ceasing to be a member of SPE Party, automatically be admitted as the sole member of SPE Party (which may be a non-economic member) (the “Special Member”) and shall preserve and continue the existence of SPE Party without dissolution. The organizational documents of SPE Party shall further provide that for so long as any portion of the Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless (i) a successor Special Member has been admitted to SPE Party as a Special Member, and (ii) such successor Special Member has also accepted its appointment as an Independent Director.
(s) The organizational documents of SPE Party shall provide that, as long as any portion of the Obligations remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documentsthis Agreement, (i) Guarantor, as the sole member (the “Sole Member”) of SPE Party may not resign, and (ii) no additional member shall be admitted to BorrowerSPE Party.
(qt) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding: (i) Borrower SPE Party shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower SPE Party or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower SPE Party in Borrower SPE Party unless the business of Borrower SPE Party is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower SPE Party to cease to be a member of Borrower SPE Party or that causes Sole Member the sole member of SPE Party to cease to be a member of Borrower SPE Party (other than (A) upon an assignment by Sole Member such sole member of all of its limited liability company interests in Borrower SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents, or (B) the resignation of Sole Member such sole member and the admission of an additional member of BorrowerSPE Party, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party, agree in writing (1) to continue the existence of BorrowerSPE Party, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of BorrowerSPE Party, effective as of the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party; (iii) the bankruptcy of Sole the sole member of SPE Party or a Special Member shall not cause such Sole Member sole member or Special Member, respectively, to cease to be a member of Borrower SPE Party and upon the occurrence of such an event, the business of Borrower SPE Party shall continue without dissolution; (iv) in the event of the dissolution of BorrowerSPE Party, Borrower SPE Party shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its the assets and properties of SPE Party shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.a
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into and performing its obligations under this Agreement with the Loan DocumentsLender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to those that it than would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (ii) shall be (A) outstanding not more than sixty (60) days, and (B) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become duedue (to the extent of available cash flow from the operations of the Property and provided that nothing contained herein shall be deemed to require any member of Borrower to make any additional capital contributions to Borrower).
(g) Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and Borrower has not, will not, nor will Borrower permit any SPC Party to, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented and (B) following a Securitization of the Loan, the applicable Rating Agencies have issued a Rating Agency Confirmation in writingconnection therewith, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsdocuments.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor 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 operationsoperations (to the extent of available cash flow from the operations of the Property and provided that nothing contained herein shall be deemed to require any member of Borrower to make any additional capital contributions to Borrower).
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did has not assume, and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Unless Borrower shall provide that be a Delaware limited liability company satisfying the requirements of clause (r) below, Borrower’s managing member (“SPC Party”) shall be a Person whose sole asset is its interest in Borrower will not (and Borrower agrees that it will not), each such SPC Party (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of will cause Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all each of the representations, warranties and covenants contained in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate3.1.24; (ii) sell, transfer, dispose, or encumber (except in accordance will at all times comply with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all each of the assets representations, warranties and covenants contained in this Section 3.1.24 (other than subsections (a), (b), (d) and (aa)) as if such representation, warranty or properties of any other Personcovenant was made directly by such SPC Party; or (iii) will not engage in any business or activity other business activity, or amend its organizational documents with respect to any of the matters set forth than owning an interest in this Section 3.13, without the prior consent of Lender in its sole discretion.
Borrower; (bbiv) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have acquire or own any of assets other than its obligations guaranteed by any Affiliate.
partnership or membership interest in Borrower; and (ddv) Borrower has not owned or acquired and will not own incur any debt, secured or acquire unsecured, direct or contingent (including guaranteeing any stock or securities of any Person.
(eeobligation) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
unsecured trade payables incurred in the ordinary course of business related to the ownership of an interest in Borrower that (ffA) Borrower has do not formed, acquired or held and will not form, acquire or hold exceed at any subsidiary (whether corporation, partnership, limited liability company or other entity)one time $10,000.00, and (B) are paid within thirty (30) days after the date incurred. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower has not owned and will not own any equity interest in any other entityshall immediately appoint a new SPC Party whose articles of formation or incorporation are substantially similar to those of such SPC Party.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party; provided, however, that that certain Management Agreement dated as of the date hereof between Borrower and Manager is hereby approved by Lender.
(d) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than (i) the Debt, (ii) unsecured trade payables not more than sixty (60) days past due incurred in the ordinary course of business in an aggregate amount not exceeding $1,000,000 exclusive of any amount that Borrower is disputing in good faith and (iii) Affiliate Loans, provided, however, notwithstanding the foregoing, that (x) all such Affiliate Loans shall at all times be Subordinate and Junior in Right of Payment and the Affiliate Creditor which makes such Affiliate Loan executes and delivers a subordination agreement to Lender in substantially the form attached as Exhibit D hereto (the "Subordination Agreement"), (y) outside counsel to the Affiliate Creditor which makes such Affiliate Loan executes and delivers to Lender an opinion letter satisfactory to Lender regarding the due authorization, execution, delivery and enforceability of such Subordination Agreement and (z) the sum of all amounts referenced in clauses (i), (ii) and (iii) above shall not exceed 75% of the Borrower's actual cash cost of acquiring the Property. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesany third party (including any Affiliate or constituent party).
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Each of Borrower and SPC Member has done or caused to be done, done and will do and cause to be done, all things necessary to observe its limited liability company and other organizational formalities and preserve its separate existence, (i) and Borrower has not terminated and SPC Member will not, nor will Borrower or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsSPC Member permit any constituent party to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower, SPC Member or (ii) to correct or supplement any provision in a manner consistent with such constituent party without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own namechecks.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor None of Borrower, SPC Member or any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The Borrower shall have as its sole member a Delaware limited liability company (the "SPC Member") which is a single purpose entity whose sole asset is its interest in Borrower (which interest shall not be less than one-hundred percent (100%) of the ownership interest in Borrower). Borrower and SPC Member shall each have as an independent manager (each an "Independent Manager") a Delaware corporation which is a single purpose entity whose sole asset is its interest in the Borrower; each of such Independent Managers shall be different corporate entities. Each Independent Manager will at all times comply, and will cause Borrower and SPC Member to comply, with each of the representations, warranties and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by the Independent Managers and the SPC Member. As used in this subsection 3.1.24, the term "single purpose entity" shall mean an entity whose organizational documents contain restrictions on its activities and impose requirements intended to preserve separateness that are substantially similar to those of Borrower and provide, inter alia, that it: (a) is organized for a limited purpose; (b) has restrictions on its ability to incur indebtedness, dissolve, liquidate, consolidate, merge and/or sell assets; (c) may not file voluntarily a bankruptcy petition without the consent of independent managers or independent directors and (d) shall provide that Borrower will conduct itself in accordance with certain "separateness covenants", including, but not (limited to, the maintenance of its books, records, bank accounts, and Borrower agrees that it will not), (i) file or consent to the filing assets separate from those of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoingother Person.
(p) The organizational documents Borrower and SPC Member shall at all times cause there to be at least two duly appointed members of the board of directors (each an "Independent Director") of the Independent Managers of Borrower and SPC Member, respectively, reasonably satisfactory to Lender who shall provide thatnot have been at the time of such individual's appointment, as long as will not be while serving and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, as sole member director (other than an Independent Director), manager, member, officer, employee, partner, attorney or counsel of such corporation, Borrower, the “Sole SPC Member”) may not resign, and or any Affiliate of any of them, (ii) no additional a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such corporation, Borrower, the SPC Member or any Affiliate of any of them, other than fees received in its capacity as an Independent Director, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person; provided, however, that this paragraph (p) shall be admitted apply only from and after the Securitization Date. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents Borrower and SPC Member shall not cause or permit the board of Borrower shall provide that, as long as any portion directors of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member Independent Manager of Borrower or SPC Member, respectively, to take any action which, under the occurrence terms of any other event which terminates the continued membership certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires a vote of the last remaining member board of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 directors of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member Independent Manager of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designeeSPC Member, as the case may be, as a substitute member of Borrower, effective as of unless at the occurrence of the event that terminated the continued membership time of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties action there shall be applied in at least two members who are Independent Directors; provided, however, that this paragraph (q) shall apply only after the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerSecuritization Date.
(r) Borrower covenants and agrees its Independent Manager shall conduct its business so that it will comply the assumptions made with or cause the compliance with, (i) all respect to Borrower in any Insolvency Opinion delivered in connection with any Securitization of the representationsLoan shall be true and correct in all respects; provided, warranties and covenants in however, that this Section 3.13, and paragraph (iir) all of shall only apply after the organizational documents of BorrowerSecuritization Date.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant only duly authorized officers of Borrower to the terms of the organizational documents of Borrower) or constituent party independent have access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred. Upon the withdrawal or the disassociation of the Independent Manager of either Borrower or SPC Member, Borrower and SPC Member, as the case may be, shall immediately appoint a new member whose articles of incorporation are substantially similar to those of the Independent Manager and, in the event a non-consolidation opinion has been provided to Lender, Borrower shall deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new single purpose entity and its equity owners.
(v) Borrower has not and SPC Member shall each have at all times at least two persons who shall automatically become members having a 0% economic interest in Borrower and SPC Member, respectively (ieach, a "Springing Member"), simultaneously upon the occurrence of any event which would cause the sole member of Borrower or SPC Member to cease to be a member of Borrower or SPC Member, as the case may be (a "Springing Event"); provided that if a single purpose entity serves as a Springing Member, only one Springing Member shall be required. Upon the occurrence of a Springing Event, Borrower and SPC Member shall be continued without dissolution and each Springing Member shall, without any action of any person or entity, automatically become a member of Borrower or SPC Member, as the case may be, having a 0% economic interest in Borrower or SPC Member, as the case may be, and the personal representative(s) filed a bankruptcy(as defined in the Act) of each member shall automatically become an unadmitted assignee of each member respectively, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating being entitled thereby only to the relief from debts or the protection of debtors generally, (ii) sought or consented distributions to which such member was entitled pursuant to the appointment operating agreement of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all SPC Member, as the case may be, and any other right conferred thereupon by the Act. Pursuant to Section 18-301 of the Act, each Springing Member shall not be required to make any capital contributions to Borrower or SPC Member, as the case may be, and shall not receive any portion limited liability company interest in Borrower or SPC Member, as the case may be. Prior to its admission to Borrower or SPC Member, as the case may be, as a member of Borrower or SPC Member, as the case may be, pursuant to this subparagraph (v), each Springing Member shall have no interest (economic or otherwise) and is not a member of Borrower or SPC Member. 1350 Corp., a Delaware corporation, shall be the initial Springing Member of Borrower’s assets or properties, (iii) made any assignment for and 1350 Mezzanine Corp., a Delaware corporation, shall be the benefit initial Springing Member of Borrower’s creditors or (iv) SPC Member; provided however, that such initial Springing Members shall not be admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection member of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all SPC Member, as the case may be, until a Springing Event shall have occurred. Upon the death, resignation, dissolution or any portion other event that causes a Springing Member to be unable to fulfill its obligations under the operating agreement of Borrower’s assets Borrower or propertiesSPC Member, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicableadmitted as a member of Borrower or SPC Member, has it shall cease to be a member of Borrower or SPC Member, as the case may be, a new Springing Member shall be appointed and sign an amendment to the operating agreement of Borrower or SPC Member, as the case may be, acknowledging such an obligation that is fully subordinated to the Debt appointment. The Bankruptcy (as defined in Sections 18-101(1) and that will not constitute a claim against Borrower if cash flow in excess 18-304 of the amount required Act) of any member or Springing Member shall not cause such member or Springing Member to pay the Debt is insufficient cease to pay such obligation.
(aa) The organizational documents be a member of Borrower shall provide that Borrower will not: (i) dissolveor SPC Member, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with as the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity)case may be, and upon the occurrence of such an event, the business of Borrower has not owned and will not own any equity interest in any other entityor SPC Member, as the case may be, shall continue without dissolution.
Appears in 1 contract
Single Purpose. Borrower (a) Each Borrower, and to the extent expressly set forth herein each Security Guarantor, hereby represents and warrants to, and covenants with, Lender Agent that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and Neither Borrower nor Security Guarantor will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than than, with respect to Security Guarantor only, (A) the Property, and (B) incidental personal property and similar property rights necessary for the ownership, leasing, management ownership or operation of the Property. Security Guarantor has not owned any material assets other than the Property and other assets incidental to its ownership of the Property.
(bii) Neither Borrower has not engaged and will not nor Security Guarantor will, engage in any material business or activity other than (A) with respect to Borrower, obtaining the acquisitionLoan, and (B) with respect to Security Guarantor, the ownership, leasingmanagement, management operation and operation financing of the Property and Borrower Security Guarantor will conduct and operate its business as presently conducted in accordance with the Loan Documents. Security Guarantor has not engaged in any material business other than the ownership, management, operation and operatedfinancing of the Property and activities incidental thereto.
(ciii) Neither Borrower has not entered and nor Security Guarantor will not either enter into into, any contract or agreement Material Agreement with any Affiliate of BorrowerBorrower or Security Guarantor (excluding all Affiliate agreements in place as of the Closing Date including, without limitation, the Management Agreements and Marketing Services Agreements), any constituent party of Borrower Borrower, Security Guarantor, or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Neither Borrower nor Security Guarantor will incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the Debt, (B) with respect to Security Guarantor only, trade and operational indebtedness incurred in the ordinary course of business with trade creditors, provided such indebtedness is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than sixty (60) days past the date incurred and paid on or prior to such date, (C) Permitted Intercompany Debt and/or (D) with respect to Security Guarantor only, Permitted Equipment Leases; provided however, the aggregate amount of the indebtedness described in (B) shall not exceed at any time four percent (4%) of the Allocated Loan Amount associated with the Individual Property owned by the applicable Security Guarantor. Security Guarantor has not incurred and will not incur any Indebtedness which will be outstanding after the funding of the Loan (it being understood that certain Indebtedness may be paid from the funding of the Loan) except for (i) Indebtedness incurred in the ordinary course of business with trade creditors, provided that such indebtedness (other than Permitted Intercompany Debt) is (1) unsecured, (2) not evidenced by a note, (3) on commercially reasonable terms and conditions, and (4) due not more than one hundred fifty (150) days past the Debt. No Indebtednessdate incurred and paid on or prior to such date, other than the (ii) Permitted Equipment Leases, (iii) Permitted Intercompany Debt, may be secured or (senior, subordinate or pari passuiv) by the PropertyIndebtedness relating to the Outstanding Work Costs.
(ev) Neither Borrower has not made and nor Security Guarantor will not make any loans or advances to any other Person third party or any investment in any third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and neither has not acquired and neither shall not acquire obligations or securities of its AffiliatesAffiliates or any other party (except with respect to each Security Guarantor’s ownership of the equity ownership interests in the applicable Borrower), in each case, except as expressly permitted pursuant to the Loan Documents.
(fvi) Each Borrower and each Security Guarantor has been, is, and will endeavor intends to remain solvent (when considered on a collective basis) and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will each intends to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets (other than Borrower) as the same shall become due; provided, that, in each such case, there exists sufficient cash flow from the Property to do so, and further provided however this provision shall not require any Constituent Member of Borrower or Security Guarantor, or any other Person, to make any capital contributions to Borrower or Security Guarantor. Notwithstanding the foregoing, Borrower shall not be violation of this clause (vi) by reason of inadequate cash flow from the Property or a decline in the value of the Property.
(gvii) Borrower has done or caused to be done, and Security Guarantor will do and or cause to be done, done all things necessary to observe its organizational formalities and preserve its separate existence, and neither Borrower nor Security Guarantor will, nor will Borrower nor Security Guarantor permit any constituent party to amend, modify, terminate or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower, Security Guarantor, or any constituent party of Borrower or Security Guarantor without the prior consent of Agent in any manner that (i) violates the single purpose covenants applicable to such Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documentsSecurity Guarantor as set forth in this Agreement, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that (A) by its terms cannot be modified at any time when the intent of Loan is outstanding, (B) by its terms cannot be modified without Agent’s or Lender’s consent, or (C) is otherwise prohibited from being amended or modified pursuant to this Agreement and or the other Loan Documents...
(hviii) Borrower has maintained and Security Guarantor will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party (other Personthan those of any Borrower and the applicable Security Guarantor that holds the ownership interests of such Borrower, whose books, records, financial statements and bank accounts may be consolidated). Neither Borrower’s nor Security Guarantor’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrowerneither’s assets will not be listed as assets on the financial statement of any other PersonPerson (other than Borrower and/or Security Guarantor); provided, however, that Borrower’s or Security Guarantor’s assets may be included in a consolidated financial statement of its Affiliates provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower Borrower, Security Guarantor, and such Affiliates and to indicate that Borrower’s and Security Guarantor’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on each of Borrower’s and Security Guarantor’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower each is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), returns) and has not filed and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes Person other than Security Guarantor (except to the extent that it is required to be paid under applicable file consolidated income tax returns by law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records).
(iix) Borrower (i) has been, and Security Guarantor will be, and at all times has held be and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower Borrower, Security Guarantor, or any constituent party of Borrower or Security Guarantor, but excluding any separateness between Borrower and the applicable Security Guarantor that holds the ownership interests of such Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own namename (other than with respect to Borrower), (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own namename (other than Borrower and the applicable Security Guarantor that holds the ownership interests of such Borrower).
(jx) Borrower has maintained and Security Guarantor will endeavor 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 operationsoperations (provided that (i) there exists sufficient cash flow from the Property to do so and this provision shall not require any Constituent Member of Borrower or Security Guarantor, or any other Person, to make any capital contributions to Security Guarantor and (ii) it is acknowledged that Borrower has no operations nor obligations other than the Debt and shall not be required to maintain any capital).
(kxi) Neither Borrower Borrower, Security Guarantor, nor any constituent party of Borrower or either has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale Borrower or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of businessSecurity Guarantor.
(lxii) Neither Borrower has not commingled nor Security Guarantor will commingle the funds and will not commingle funds or other assets of Borrower or Security Guarantor with those of any Affiliate or constituent party or any other PersonPerson (other than the commingling of funds between Borrower and Security Guarantor or in connection with the collection of Rents from a Property by an Affiliate of Borrower or Security Guarantor), and has held and will hold all of its assets solely in its own name.
(mxiii) Borrower has maintained and Security Guarantor will maintain its assets (if any) in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(nxiv) Neither Borrower did not assume, nor Security Guarantor will guarantee or become obligated for the debts or obligations of any other Person Person), and did not neither will hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assumePerson (other than, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not)in each case, (i) file or consent to the filing applicable Security Guarantor that holds the ownership interests of any petitionBorrower guaranteeing, either voluntary becoming obligated for, or involuntaryholding itself out as responsible for, to take advantage the debts of any applicable insolvency, bankruptcy, liquidation or reorganization statutesuch Borrower, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any as a result of the matters set forth in this Section 3.13, without the prior consent being a member of Lender in its sole discretiona fiscal unity for Dutch tax purposes.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and -------------- covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has each Individual Borrower do not owned, does not own, own and will not own any asset or property other than (A) the PropertyProperties, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperties.
(bii) Borrower has not engaged and each Individual Borrower will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower and each Individual Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and each Individual Borrower will not enter into any contract or agreement with any Affiliate of any Individual Borrower, any constituent party of any Individual Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarm's-length basis from an unrelated with third parties other than any such party.
(div) Borrower has and each Individual Borrower have not incurred and will shall not incur any Indebtedness indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) the Debt; (B) unsecured trade payables and other unsecured indebtedness not evidenced by a note, equipment leases and endorsements of checks, incurred by Borrower or one or more Individual Borrowers for or in respect of the operation of the Properties in the ordinary course of operating its business; (C) unsecured indebtedness not evidenced by a note payable or reimbursable to a tenant under a Lease on account of work performed or costs incurred by such tenant in connection with its occupancy of space at an Individual Property pursuant to the Lease, including costs for tenant improvement work; and (D) indebtedness relating solely to the financing of construction of capital improvements, tenant improvements or building equipment or leasing costs payable to third parties or any Manager in accordance with the Management Agreements and incurred with respect to one or more of the Individual Properties and costs associated with such indebtedness, either unsecured or secured only by subordinate liens and (i) which in the aggregate does not exceed an amount equal to five percent (5%) of the outstanding principal amount of the Loan at any time, (ii) the proceeds of which are not distributed to any Individual Borrower or any direct beneficial owner of an interest in any Individual Borrower, but are instead used to fund directly the costs of items described above, other than commissions and fees paid to any Manager or Natomas Manager in accordance with the Management Agreements or the Natomas Management Agreement, (iii) which is evidenced by a note or other written agreement having terms (other than the Debtinterest rate and repayment terms) no less favorable to Borrower than the terms of the Loan, (iv) the terms of which shall require that the principal amount of such indebtedness be repaid from Net Operating Income prior to any distributions to any direct beneficial owner of an interest in any Individual Borrower (other than for income, franchise, or other taxes imposed on Borrower for the privilege of doing business in the jurisdictions in which the Property is located) and (v) is subject to a subordination and standstill agreement satisfactory in form and substance to Lender. No IndebtednessExcept as set forth in the immediately preceding sentence, no indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) ---- ----- by the PropertyProperties.
(ev) No Individual Borrower has not made and or will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower affiliate or any Affiliate of any constituent party), and has not acquired and no Individual Borrower shall not acquire obligations or securities of its Affiliates.
(fvi) Each Individual Borrower has been, is, is and will endeavor to remain solvent and each Individual Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel employment and overhead expenses) from its assets as the same shall become due., subject to Borrower's right to contest Taxes and Other Charges in accordance with Section 5.1(b) and Labor and Material Costs in -------------- accordance with Section 3.6(b) of the -50-
(gvii) Each Individual Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational partnership formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, each Individual Borrower will not not, nor will any Individual Borrower permit any constituent party to, amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity of such Individual Borrower or (ii) to correct or supplement any provision in a manner consistent with such constituent party without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements books and bank accounts records separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and each Individual Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that returns. Each Individual Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Each Individual Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, be a legal entity separate and distinct from any other entity (including any Affiliate of any Individual Borrower or any constituent party of any Individual Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted entity and shall conduct business solely in its own name; provided, (iv) has not identified however that each Individual Borrower may use the word "▇▇▇▇▇▇▇▇" as a part of such Individual Borrower's name, may describe itself as a "wholly-owned subsidiary" of ▇▇▇▇▇▇▇▇ Properties Acquisition Partners, L.P. so long as such description is true and shall not identify itself or any of correct and may permit its relationship with its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own nameto be disclosed in order to comply with any public filing requirements applicable to ▇▇▇▇▇▇▇▇ Properties Trust.
(jx) Each Individual Borrower has maintained is adequately capitalized and will endeavor 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.
(kxi) Neither No Individual Borrower nor any or constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, or consolidation or mergermerger in connection with an insolvency proceeding, in whole or in part, of any Individual Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(nxiii) Each Individual Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents Person other than the debts or obligations of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to another Individual Borrower.
(qxiv) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of If each Individual Borrower is continued in a manner permitted by its operating agreement limited partnership, the general partner of each Individual Borrower is a corporation or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests whose sole asset is its interest in Borrower one or more Individual Borrowers and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized togeneral partner will at times comply, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to will cause the appointment of a receiver for all or any portion of the assets or properties of Borrowerrelated Individual Borrower to comply, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all each of the representations, warranties warranties, and covenants contained in this Section 3.134.1(ee) as if such --------------- representation, and (ii) all of the organizational documents of Borrowerwarranty or covenant was made directly by such general partner.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into and performing its obligations under this Agreement with the Loan DocumentsLender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to those that it than would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding two percent (2%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (ii) shall be (A) outstanding not more than sixty (60) days, and (B) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as "Permitted Indebtedness"). No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and Borrower has not and will not, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented and (B) following a Securitization of the Loan, the applicable Rating Agencies have issued a Rating Agency Confirmation in writingconnection therewith, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsall material respects.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s 's assets have will not been be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s 's assets may have been be included in a consolidated financial statement of its Affiliates; Affiliates provided that, if applicable, that (i) appropriate notation (e.g., footnote) were shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit were are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s 's own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor 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, nothing herein shall require any partners or members of Borrower to make additional capital contributions.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l1) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Mezzanine Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Such Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Collateral and indirect ownership of the applicable Property, and (Bii) incidental personal property necessary for the ownership, leasing, management or operation of the Propertyin connection therewith.
(b) Such Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and/or the Collateral and Borrower will conduct and operate its business as presently conducted and operated.
(c) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerany Borrower or any Owner, any constituent party of any Borrower or any Owner or 348 any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Such Borrower has not incurred and will not incur any Indebtedness other than the Debt. No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Such Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Such Borrower has been, is, is and will endeavor to remain solvent and such Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Such Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, and such Borrower will not, nor will Borrower permit Owner or any SPC Party to, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its respective organizational documentsdocuments or, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Mezzanine Lender has consented in writingand (B) following a Securitization of the Mezzanine Loan, Borrower will not the applicable Rating Agencies have issued a Rating Agency Confirmation, amend, modify or otherwise change its operating agreement or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsdocuments.
(h) Such Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person, including, without limitation, any other Borrower. Such Borrower’s 's assets have will not been be listed as assets on the financial statement of any other Person; provided, howeverPROVIDED, HOWEVER, that such Borrower’s 's assets may have been be included in a consolidated financial statement of its Affiliates; Affiliates provided that, if applicable, that (i) appropriate notation (e.g., footnote) were shall be made on such consolidated financial statements or the notes thereto to indicate the separateness of such Borrower and such Affiliates and to indicate that such Borrower’s 's assets and credit were are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were shall be listed on such Borrower’s 's own separate balance sheet. Borrower’s assets Such Borrower 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay unless required by any taxes required to be paid under applicable lawLegal Requirements, tax code or GAAP. Such Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of such Borrower or any constituent party of such Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Such Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale, or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Such Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Such 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 Affiliate or constituent party or any other Person, except as provided herein and in any other Mezzanine Loan Documents.
(n) Such Borrower did has not assume, and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) Such Borrower's general partner or managing member, as applicable, (each, an "SPC PARTY") shall be a corporation whose sole asset is its interest in such Borrower and each such SPC Party (i) will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this SECTION 3.1.24; (ii) will at all times comply with each of the representations, warranties, and covenants contained in this SECTION 3.1.24 (other than subsections (a), (b), (d) and (aa)) as if such representation, warranty or covenant was made directly by such SPC Party; (iii) will not engage any business or activity other than owning an interest in such Borrower; (iv) will not acquire or own any assets other than its partnership or membership interest in such Borrower; and (v) will not incur any Obligations, secured or unsecured, direct or contingent (including guaranteeing any obligation) other than unsecured trade payables incurred in the ordinary course of business related to the ownership of an interest in such Borrower that (x) do not exceed at any one time $10,000, and (y) are paid within thirty (30) days after the date incurred. Upon the withdrawal or the disassociation of an SPC Party from such Borrower, such Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners.
(p) The organizational documents of Borrower each SPC Party shall provide that (and such Borrower shall at all times cause there to be) at least two duly appointed members of the board of directors (an "INDEPENDENT DIRECTOR") of such SPC Party reasonably satisfactory to Mezzanine Lender who shall not have been at the time of such individual's appointment or at any time while serving as an Independent Director, and may not have been at any time during the preceding five (5) years (i) a stockholder, director (other than as an Independent Director), officer, employee, partner, attorney or counsel of any Borrower or any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with a SPC Party, any 350 Borrower or any Affiliate of either of them, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of each SPC Party shall provide that the board of directors of such SPC Party shall not take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock, requires a unanimous vote of the board of directors of such SPC Party unless at the time of such action there shall be at least two members of the board of directors who are Independent Directors (and such Independent Directors have participated in such vote). The SPC Party will not (and without the unanimous written consent of its board of directors including the Independent Directors, on behalf of itself or such Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower official, (iii) take any action that might cause such entity to become insolvent, or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Such Borrower shall conduct its business so that the assumptions made with respect to such Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, such Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding such Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.13SECTION 3.1.24, and (iiiii) all of the organizational documents of Borrowersuch Borrower and any SPC Party.
(s) Such Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Such Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Such Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Such Borrower has not, and without the unanimous consent of all of its directors or members (including all Independent Directors), as applicable, will not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (Bii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower such entity or for all or any portion of such 351 Borrower’s assets or 's properties, (Ciii) make any assignment for the benefit of such Borrower’s 's creditors or (Div) admit in writing Borrower’s inability take any action that might cause such Borrower to pay its debts generally as they become dueinsolvent.
(w) Such Borrower has maintained and will maintain an arm’sarm's-length relationship with its Affiliates.
(x) Such Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliateexpenses, including, without limitation, including shared office space.
(y) Except to Lender in connection with the Mezzanine Loan, such Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, of any other Person.
(z) Such Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, directors or members members, as the case may be, or, if applicable, or has such an obligation that is fully subordinated to the Debt Obligations and that will not constitute a claim against Borrower it if cash flow in excess of the amount required to pay the Debt Obligations is insufficient to pay such obligation.
(aa) The organizational documents If such Borrower is a limited liability company, such Borrower has and will have articles of Borrower shall provide organization, a certificate of formation and/or an operating agreement, as applicable, providing that Borrower will not: (i) dissolvesuch entity will dissolve only upon the bankruptcy of the managing member, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all vote of its assets or properties or acquire all or substantially all a majority-in-interest of the assets or properties remaining members is sufficient to continue the life of any other Person; or the limited liability company in the event of such bankruptcy of the managing member and (iii) engage in any other business activity, or amend its organizational documents with respect to any if the vote of a majority-in-interest of the matters set forth in this Section 3.13remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate the Property without the prior consent of Lender in its sole discretionthe applicable Rating Agencies for as long as the Mezzanine Loan is outstanding.
(bb) Such Borrower and each Independent Director will consider the interests of such Borrower’s 's creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entityactions.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Horizon Group Properties Inc)
Single Purpose. Borrower Parties hereby represents represent and warrants warrant to, and covenants covenant with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ax) the Property, and (By) incidental personal and intangible property necessary for the ownership, leasing, management ownership or operation of the Property; (ii) Senior Mezzanine Guarantor does not own and will not own any asset or property other than its interest in the Borrower and Borrower GP and incidental personal and intangible property necessary for the ownership of such Equity Interest; and (iii) each other SPE Entity will not own any asset or property other than the applicable Equity Interest reflected on the Organizational Chart and incidental personal and intangible property necessary for the ownership of such Equity Interest.
(bi) Borrower has not engaged and will not engage in any business or activity other than the acquisition, development, ownership, leasingoperation, management and operation leasing and maintenance of the Property and entering into the applicable Loan Documents, the Senior Loan Documents, Junior A Mezzanine Loan Documents and the Junior B Mezzanine Loan Documents, and activities incidental thereto, and Borrower will conduct and operate its business as presently conducted and operated.; (ii) Senior Mezzanine Guarantor will not engage in any business other than the acquisition, ownership, management and operation of the Borrower and Borrower GP and entering into the applicable Loan Documents, and activities incidental thereto, and Senior Mezzanine Guarantor will conduct and operate its business as presently conducted and operated; and (iii) each other SPE Entity will not engage in any business other than the ownership, management and operation of the applicable Equity Interest reflected on the Organizational Chart and entering into the applicable Loan Documents, Junior A Loan Documents and Junior B Loan Documents, and activities incidental thereto, and each SPE Entity will conduct and operate its business as presently conducted and operated
(c) Borrower has not entered and except for the Approved Management Agreement, each SPE Entity will not enter into any contract or agreement with any Affiliate affiliate of Borrowersuch SPE Entity, any constituent party of Borrower such SPE Entity or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has and Borrower GP have not incurred and will not incur any Indebtedness other than the Permitted Debt. No Indebtedness, Indebtedness other than the Debt, Senior Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower Senior Mezzanine Guarantor has not made incurred and will not incur any Indebtedness other that the Debt.
(f) Junior A Mezzanine Guarantor has not incurred and will not incur any Indebtedness other than Indebtedness incurred pursuant to the Junior A Mezzanine Loan Documents.
(g) Junior B Mezzanine Guarantor has not incurred and will not incur any Indebtedness other than Indebtedness incurred pursuant to the Junior B Mezzanine Loan Documents.
(h) Common GP has not incurred and will not incur any Indebtedness other than Indebtedness, if any, incurred pursuant to the Loan Documents, the Junior A Mezzanine Loan Documents, and the Junior B Mezzanine Loan Documents.
(i) Other than as set forth in subsections (d)-(h) above, no SPE Entity has incurred, and no SPE Entity will incur, any Indebtedness (provided that Borrower and Borrower GP may incur Permitted Debt pursuant to subsection (d) above).
(j) No SPE Entity has made nor will it make any loans or advances to any other Person third party (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent partybut provided that this shall not prohibit tenant allowances pursuant to the Leases permitted under this Agreement), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fk) Borrower has been, is, Each SPE Entity is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and each SPE Entity will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gl) Borrower Each SPE Entity has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, and no SPE Entity will, nor will it permit any constituent party to Modify the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of such SPE Entity or such constituent party in any manner that (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with violates the provisions of its organizational documentssingle purpose covenants set forth in this Section 3.1.24, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement Modifies any provision in a manner consistent with thereof that by its terms cannot be Modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be Modified without Lender’s consent.
(hm) Borrower has maintained and Each SPE Entity will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates affiliates and any other Personconstituent party. BorrowerEach SPE Entity’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s respective assets will not be listed as assets on the financial statement of any other Person; , provided, however, that Borrowereach SPE Entity’s respective assets may be included in a consolidated financial statement of its Affiliates affiliates provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower such SPE Entity and such Affiliates affiliates and to indicate that Borrowersuch SPE Entity’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrowersuch SPE Entity’s own separate balance sheet. Borrower shall Each SPE Entity will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes are required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(ifiled by such SPE Entity) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Thomas Properties Group Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not more than sixty (60) days past due subject to Borrower's right to contest same pursuant to Section 4.1.2 hereof, (y) not in excess of Ten Million and No/100 Dollars ($10,000,000.00) in the aggregate and (z) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender's consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Borrower’s 's assets have will not been be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s 's assets may have been be included in a consolidated financial statement of its Affiliates; Affiliates provided that, if applicable, that (i) appropriate notation (e.g., footnote) were shall be made on in the footnotes to such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s 's own separate balance sheetsheet although Borrower shall not be required to disclose with specificity Borrower's assets separately on the consolidated financial statements. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable lawreturns), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own nameother.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents Borrower shall at all times during the term of the Loan be a single member Delaware limited liability company. Borrower shall have at least two springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent if the first such springing member no longer is available to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally serve as they become due, or (vi) take any action in furtherance of any of the foregoingsuch sole member.
(p) The organizational documents Borrower shall at all times cause there to be at least two duly appointed members of its board of directors who are provided by a nationally-recognized company that provides professional independent directors (each, an "Independent Director") of Borrower reasonably satisfactory to Lender who shall provide thatnot have been at the time of such individual's appointment or at any time while serving as an Independent Director on the board of directors of Borrower, as long as and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantoran equity holder, director (other than as sole member (the “Sole Member”) may not resignan Independent Director), and officer, employee, partner, attorney or counsel of Borrower or any Affiliate of Borrower, (ii) no additional a customer, supplier or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate of Borrower, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such equity holder, director, officer, employee, partner, customer, supplier or other Person. A natural person who satisfies the foregoing definition other than subsection (ii) shall not be admitted disqualified from serving as an Independent Director if such individual is an independent manager provided by a nationally-recognized company that provides professional independent managers, directors or special members and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a "special purpose entity" affiliated with the Borrower that does not own a direct or indirect equity interest in the Borrower shall not be disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, an Independent Director of a "special purpose entity" affiliated with the Borrower (other than any entity that owns a direct or indirect equity interest in the Borrower) if such individual is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term "control" means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of Borrower shall provide that, as long as any portion not cause or permit the board of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member directors of Borrower to cease take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to be a member of Borrower any common stock or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the under any organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member document of Borrower, if permitted pursuant to requires a unanimous vote of the organizational documents board of directors of Borrower and unless at the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member action there shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as at least two members who are necessary to wind up its affairs (including the sale of its assets and properties in each an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerIndependent Director.
(r) Borrower shall conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of the Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Kindercare Learning Centers Inc /De)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a1) Propco Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property and (2) Opco Borrower does not own and will not own any asset or property other than the personalty and other assets owned by it necessary for the operation of the Property.
(b1) Propco Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and (2) Opco Borrower will not engage in any business other than the management and operation of the Property, and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, reasonable (taking into account all facts and circumstances) and either substantially similar to those that would be available on an arm’s-length basis from an unrelated with third partyparties other than any such party or a capital contribution or distribution.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of 5% of the outstanding principal amount of the Loan in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above and (z) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty other than Indebtedness of the type described in and subject to the requirements of clause (iii) of this clause (d).
(e) Except as expressly contemplated by the Loan Documents with respect to the other Borrower, Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of any of its Affiliates.
(f) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay all of its debts and liabilities (including, as applicable, a fairly allocated portion of shared personnel and overhead expenses) only from its own assets and as the same shall become due.
(g) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities applicable to Borrower and preserve its separate Borrower’s existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates or makes such organizational documents inconsistent with the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements (it being acknowledged that the agent under the Cash Management Agency Agreement shall be continuously able to produce separate balance sheets of the Borrowers) and bank (except as contemplated in the Cash Management Agency Agreement) ▇▇▇▇ accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement from those of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements (and/or in Annual Reports on Form 10-K filed with U.S. Securities and Exchange Commission in which such financial statements are contained) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall are continuously able to be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable lawreturns), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its bookshooks, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own namename (except with respect to payments or communications made on behalf of the Borrower by the counterparty to the Cash Management Agency Agreement, in which event, such counterparty shall nevertheless identify the Borrower as the party on whose behalf the payment or communication is being made).
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Except as expressly contemplated by the Loan Documents and the Cash Management Agency Agreement, Borrower has not commingled and will not commingle the funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Except as expressly contemplated by the Loan Documents with respect to the other Borrower, Borrower did will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy or assets hold out its credit as being available to satisfy the debts or obligations of any other Person.
(oi) The organizational documents If Borrower is a limited partnership or a limited liability company, (other than a single member limited liability company that satisfies all of the requirements of Section 3.1.24(o)(ii)), each general partner or managing member (each, an “SPC Party”) of Borrower shall provide be a corporation or single member limited liability company that satisfies all of the requirements of Section 3.1.24(o)(ii) whose sole asset is a direct interest in Borrower of at least 0.5% (or 0.1% if Borrower is an entity formed under the laws of Delaware) and each such SPC Party will not at all times comply with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party (substituting the term “SPC Party” for the term Borrower” throughout) and will cause Borrower agrees that it will notto comply with this Section 3.1.24 (except for subsections (a), (ib), (d), (n) file and (x)). Upon the withdrawal or consent the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose constituent documents are substantially similar to those of the withdrawing or disassociating SPC Party and deliver a new non-consolidation opinion to the filing Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners. If Borrower is a limited partnership, Borrower shall have at least one general partner. If Borrower is a limited liability company (other than a single-member limited liability company that satisfies all of the requirements of Section 3.1.24(o)(ii)), Borrower shall have at least one (1) managing member. An SPC Party shall be organized for the sole purpose of owning a direct interest in the Borrower, shall own no other interests in any petitionentity, either voluntary or involuntary, to take advantage and shall not incur indebtedness except as it may be liable for the debts of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the Borrower in its capacity as general partner of the Borrower.
(ii) seek or consent to if Borrower is a single member limited liability company (“single member limited liability company” meaning a limited liability company having only one equity member), Borrower shall be a limited liability company organized under the appointment laws of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, Delaware and shall have either (ivA) make an assignment for the benefit of creditors, two (v2) admit in writing Borrower’s inability to pay its debts generally as they become due, non-equity members or (viB) take any action in furtherance at least two springing members, one of any which, upon the dissolution of such sole member or the withdrawal or the disassociation of the foregoingsole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents Borrower or its SPC Party shall at all times cause there to be at least two duly appointed Independent Directors, who are provided by a nationally recognized company that provides professional independent directors, of each SPC Party and of Borrower if Borrower is a single member limited liability company. As used herein, “Independent Director” shall provide thatmean a natural person serving as a director of a corporation or manager of a limited liability company who is not at the time of initial appointment, as long as or at any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resigntime while serving, and has not been at any time during the preceding five (ii5) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstandingyears: (ia) Borrower shall be dissolved, and its affairs shall be wound up, only upon a stockholder or director (with the first to occur exception of serving as the following: (A) the termination of the legal existence of the last remaining member Independent Director of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining SPC Party that is an SPC Party or managing member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”Borrower), trustee, officer, employee, partner, member, attorney or counsel of SPC Party, Borrower or any affiliate of either of them; (b) a creditor, customer, supplier or other person who derives any of its purchases or revenues from its activities with SPC Party, Borrower or any affiliate of either of them; (c) a person or other entity controlling or under common control with any Person excluded from serving as Independent Director under subparagraph (a) or (Bb); or (d) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of the immediate family of any Person excluded from serving as Independent Director under subparagraph (a) or (b). As used in this definition, the term “affiliate” means any person controlling, under common control with, or controlled by the person in question; and 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. A natural person who satisfies the foregoing definition other than subparagraph (b) shall not be disqualified from serving as an Independent Director if such individual has been provided by a nationally-recognized company that provides professional independent directors. A natural person who otherwise satisfies the foregoing definition except for being the Independent Director of a “special purpose entity” affiliated with Borrower or that causes Sole Member to cease to SPC Party shall not be a member disqualified from serving as an Independent Director of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests or SPC Party if such “special purpose entity” does not own a direct or indirect equity interest in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents or in any co-borrower of Borrower and the Loan Documentsif such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of this paragraph, or (B) the resignation of Sole Member and the admission of a “special purpose entity” is an additional member of Borrowerentity, if permitted pursuant to the whose organizational documents of Borrower and the Loan Documents), contain restrictions on its activities substantially similar to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, those set forth in Section 18-804 3.1.24 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrowerthis Agreement.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment None of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Owners does not own, and or will not own any encumbered asset or property other than (A) the Property, and (B) incidental personal property necessary for or used in connection with the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and None of the Owners will not engage in any business or activity other than the acquisition, ownership, leasingmanagement, management operation, sale and operation refinancing of the Property Property, and Borrower each Owner will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and None of the Owners will not enter into any contract or agreement with any Affiliate of Borrowerits affiliates or constituent parties, any constituent party of Borrower or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower None of the Owners has not incurred and or will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness and other than indebtedness owing by an Owner to Banyan for customary and ordinary debt service payments, leasing commissions, tenant improvement costs, Operating Expenses and Capital Expenses advanced by Banyan in the ordinary course of Banyan's business on behalf of such Owner. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the Property.
(ev) Borrower None of the Owners has not made and or will not make any loans or advances to any other Person third party (including any Affiliate of Borroweraffiliate or constituent party, any constituent party of Borrower or any Affiliate affiliate of any constituent party), other than advances and has not acquired repayments made by Owner to Banyan in the ordinary course of each such Owner's and shall not acquire obligations or securities of its AffiliatesBanyan's business.
(fvi) Borrower has been, is, Each Owner is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower Each Owner that is a corporation has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational corporate formalities and preserve its separate existence, .
(iviii) Borrower Each Owner that is a business trust has not terminated done or failed caused to comply with be done and will not terminate or fail do all things necessary to comply with observe business trust formalities and preserve its existence.
(ix) None of the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower Owners will not permit any constituent party to amend, modify or otherwise change its the articles of organization, operating agreement, articles of incorporation and bylaws, partnership certificate, partnership agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of such Owner or (ii) to correct or supplement any provision such constituent party in a manner consistent which would adversely affect an Owner's existence as a single purpose entity; provided that the foregoing shall not apply to an Owner if it no longer owns title to a Parcel that is encumbered by the Mortgage by reason of a full defeasance of the Note pursuant to Section 2.4.1 above, a partial release having been issued with the intent of this Agreement and the other Loan Documentsrespect to such Parcel pursuant to Section 2.4.3 above or such Parcel having become a Replaced Parcel pursuant to Section 2.4.4 above.
(hx) Borrower has maintained and Each Owner will maintain all separate books and records of its books, records, financial statements income and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsexpenses.
(ixi) Borrower (i) has been, Each Owner will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower affiliate, any constituent party, or any affiliate of any constituent party of Borrower), (iiparty) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(jxii) Borrower has maintained and Each Owner will endeavor 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.
(kxiii) Neither Borrower None of the Owners nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borroweran Owner; provided that the foregoing shall not apply to an Owner if it no longer owns title to a Parcel that is encumbered by the Mortgage by reason of a full defeasance of the Note pursuant to Section 2.4.1 above, any sale a partial release having been issued with respect to such Parcel pursuant to Section 2.4.3 above or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of businesssuch Parcel having become a Replaced Parcel pursuant to Section 2.4.4 above.
(lxiv) Borrower Each Owner has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Borrower has maintained and will maintain its assets in such a manner that it will not be costly or difficult possible to segregate, ascertain or identify its individual assets from those of any Affiliate affiliate or constituent party, or any affiliate of any constituent party or any other Personperson.
(nxv) Borrower did not assumeExcept for the Loan, guarantee or become obligated none of the Owners has and none of the Owners will hold itself out to be responsible for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) The organizational documents Each Owner that is a business trust shall at all times have one duly appointed trustee (referred to herein as an "Independent Trustee") reasonably satisfactory to Lender who shall either be a corporation with an "Independent Director," as described below, or who shall be an individual who shall not have been at the time of Borrower shall provide that Borrower will such individual's appointment, and may not (and Borrower agrees that it will not), have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer or employee of, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generallyaffiliates, (ii) sought a customer of, or consented to the appointment of a receiversupplier to, liquidator, assignee, trustee, sequestrator, custodian Borrower or any similar official for Borrower of its shareholders, subsidiaries or for all or any portion of Borrower’s assets or propertiesaffiliates, (iii) made a person or other entity controlling any assignment for the benefit of Borrower’s creditors such shareholder, supplier or customer, or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess member of the amount required to pay the Debt is insufficient to pay immediate family of any such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolveshareholder, mergeofficer, liquidateemployee, consolidate; (ii) sell, transfer, dispose, supplier or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties customer of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any trustee of the matters set forth in this Section 3.13Owner. As used herein, without the prior consent term "control" means the possession, directly or indirectly, of Lender in its sole discretionthe power to direct or cause the direction of the management and policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower Obligor hereby represents and warrants to, and covenants with, Lender that since the date that, as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) It has not owned, does not own, owned and will not own any asset property or property any other assets other than (A) the PropertyProperties currently owned or leased by it, and (B) incidental personal and intangible property necessary for relating to the ownership, leasing, management ownership or operation of the Property.Properties;
(bii) Borrower It has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasingmanagement, management financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Properties owned by it;
(ciii) Borrower It has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates, any of its constituent party of Borrower parties or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated with third party.parties;
(div) Borrower It has not incurred and will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Property.;
(ev) Borrower It has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.any Affiliate or constituent party or any Affiliate of any constituent party;
(fvi) Borrower has been, is, It is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and it will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.;
(gvii) Borrower It has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership or limited liability company formalities, as the case may be, and preserve its separate existence, (i) Borrower has not terminated and it will not, nor will it permit or failed suffer any constituent party to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, operating agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision those of such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documents.which would adversely affect its existence as a Single Purpose Entity;
(hviii) Borrower has maintained and It will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower constituent party and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets it 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower consolidation is treated required under GAAP or as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable matter of law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.;
(iix) Borrower (i) has been, It will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliates, any of its constituent parties or any Affiliate of Borrower or any constituent party of Borrowerparty), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing and it will 76 78 pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its own name.use of such office space and administrative services;
(jx) Borrower has maintained and It will endeavor 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.;
(kxi) Neither Borrower it nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek its dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.;
(lxii) Borrower has not commingled and Except as required by the terms of the Loan Documents, it will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person, and has held and will hold all of its assets solely in its own name.;
(mxiii) Borrower 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations Affiliate of any other Person and did not hold itself out to be responsible for constituent party or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will ;
(xiv) It has not assume, guarantee or become obligated for the debts or obligations of any other Person and does not held and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.;
(oxv) The organizational documents If it is a single-member limited liability company, it shall have two Independent Directors as its duly appointed members of Borrower its board of directors;
(xvi) It shall provide not cause or permit its board of directors to take any action which, under applicable law or the terms of any certificate of incorporation, operating agreement, by-laws or any voting trust agreement with respect to any common stock, requires the vote of its board of directors unless at the time of such action there shall be at least two members who are Independent Directors; provided, however, that Borrower will subject to any applicable Legal Requirements, it may, at its discretion, cause or permit its board of directors to take any action without regard to the preceding clause of this sentence other than the following actions, and the following actions shall not be taken while the Debt is outstanding: (A) dissolve or liquidate, in whole or in part; (B) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and Borrower agrees that it will not)assets to any entity; (C) engage in any business other than the ownership, maintenance and operation of the Properties in which such Obligor owns an interest or, with respect to such managing member, acting as the managing member of Obligor (iD) 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 77 79 answer or consent seeking reorganization or relief under the Bankruptcy Code or consent to the filing of any petition, either voluntary such petition or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of such managing member or Obligor or of any similar official for Borrower or a substantial portion part of its assets property, or propertiesordering the winding up or liquidation of its affairs, (iv) or make an assignment for the benefit of creditors, (v) or admit in writing Borrower’s its inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.; (E) amend such managing member's certificate of incorporation or the operating agreement of Obligor (except that such amendment shall be permitted with the consent of Lender and the Rating Agency, in each case in the sole discretion of the applicable party); (F) enter into any transaction with an Affiliate not in the ordinary course of Obligor's business; or (G) withdraw as the managing member of Obligor;
(pxvii) The organizational documents of Borrower shall provide thatIt has no liabilities, as long as any portion contingent or otherwise, other than those normal and incidental to the ownership, operation and leasing of the Debt remains outstanding, except as expressly permitted pursuant Properties in which it owns an interest;
(xviii) Obligor shall conduct its business so that the assumptions made with respect to Obligor in that certain opinion letter dated the terms of date hereof delivered by Sidley & Austin addressing substantive non-consolidation and other matters in connection with the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.true and correct in all respects;
(qxix) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and Obligor will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.;
(txx) Borrower has paid and Obligor shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.; and
(uxxi) Borrower has compensated and Obligor shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred. Upon the withdrawal or the disassociation of the two Independent Directors from any constituent entity of Obligor, Obligor shall immediately appoint new directors or cause such entity to appoint new directors that satisfy the requirements of an Independent Director under this Agreement.
(vxxii) Borrower has not Obligor and the members of Obligor shall at all times comply with the terms of the operating agreement applicable to Obligor.
(xxiii) Obligor (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief is not under any laws relating obligation to the relief from debts advance or the protection contribute property to any Affiliate by way of debtors generallycapital contribution, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will shall not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors advance or (D) admit in writing Borrower’s inability contribute property to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed Affiliate by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.way
Appears in 1 contract
Sources: Loan Agreement (Starwood Hotel & Resorts Worldwide Inc)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full, Borrower has not at any time, does not presently, and shall not:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the PropertyProperty and assets related to the acquisition, ownership, development, leasing, use, management or operation of the Property and (Bii) incidental personal property necessary for the acquisition, ownership, development, leasing, use, management or operation of the Property.;
(b) Borrower has not engaged and will not engage in any business or activity other than unrelated to the acquisition, ownership, development, leasing, use, management and or operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Property;
(c) Borrower has not entered except for the Permitted Encumbrances and will not other contracts or agreements disclosed in writing to Lender, enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available in a comparable transaction on an arm’sarms-length basis from an unrelated with third parties other than any such party.;
(d) incur any Indebtedness or obligations under operating leases other than (i) the Debt and all other sums due by Borrower has under this Agreement or any other Loan Documents, (ii) unsecured trade payables, operating leases with respect to the Property and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time, (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $5,000,000 in the aggregate; and (iv) the obligation to make termination payments or reimburse rent payable by the tenants of the Property under the agreements entered into with existing or prospective tenants of the Property with Lender’s approval; and (v) tenant improvement allowances or similar concessions to tenants of the Property pursuant to Leases; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) paid within sixty (60) days of the date incurred and will not incur (y) incurred in the ordinary course of business and any obligations under operating leases which shall be paid in accordance with their terms. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.;
(e) Borrower has not except for advances made and will not to or for the benefit of Tenants for tenant improvement allowances or similar concessions pursuant to the Leases currently existing at the Property on the date hereof as disclosed on Schedule I attached hereto or Leases entered into after the date hereof in accordance with this Agreement, make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.;
(f) Borrower has been, is, and will endeavor fail to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will or fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.due to the extent it has adequate funds to do so;
(g) Borrower has done or caused fail to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documents.is outstanding or by its terms cannot be modified without Lender’s consent;
(h) Borrower has maintained and will fail to maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Borrower’s assets have will not been be listed as or list its assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall ;
(i) fail to file its own (or consolidated) tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes except where Borrower is required to be paid under file consolidated tax returns by applicable law. Borrower has maintained and shall Legal Requirements.
(j) fail to maintain its books, records, resolutions and agreements as official records.;
(ik) Borrower (i) has been, will fail to be, and at all times has held and will or fail to hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall fail to correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall fail to conduct business solely in its own name, (iv) has not identified or fail to maintain and utilize separate stationery, invoices and checks bearing its own name, and Borrower shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.other;
(jl) Borrower has maintained and will endeavor fail to use commercially reasonable efforts to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.; provided, however, the foregoing shall not require the members of Borrower to make any additional capital contributions to Borrower;
(km) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, Borrower nor permit any sale or other transfer constituent party of all or substantially all Borrower to do any of its assets or any sale or other transfer outside the ordinary course of business.foregoing;
(ln) Borrower has not commingled commingle the funds and will not commingle funds or other assets of Borrower with those of any Affiliate or any constituent party of Borrower or any other Person, and has held and will hold all of its assets solely in its own name.;
(mo) Borrower has maintained and will fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party of Borrower or any other Person.;
(np) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not or hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.;
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file If Borrower is a limited partnership or consent a limited liability company (other than a single member limited liability company), fail to cause each general partner or managing member (each, an “SPC Party”) to be a corporation whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners;
(ii) seek If Borrower is a single member limited liability company, fail to have at least two (2) springing members, one of which, upon the dissolution of such sole member or consent to the appointment of a receiver, liquidator withdrawal or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any disassociation of the foregoing.
(p) The organizational documents sole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower shall provide that, if the first such springing member no longer is available to serve as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as such sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrowermember.
(q) The organizational documents of Borrower shall provide that, as long as any portion fail to cause there to be at least two duly appointed members of the Debt remains outstanding: board of directors who are provided by a nationally recognized company that provides professional independent directors or manager (each, an “Independent Director” or “Independent Manager”) of each SPC Party and Borrower reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director or Independent Manager), officer, employee, partner, attorney or counsel of such SPC Party, Borrower shall be dissolvedor any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than its fees and its affairs shall be wound up, only upon the first to occur charges for serving as an Independent Director or Independent Manager of the following: SPC Party), (Aiii) the termination a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person prohibited by clause (i) or (ii) above, or (iv) a member of the legal existence immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person prohibited by clause (i) or (ii) above. (For purposes of this subclause (o), the term “Affiliate” means any person controlling, under common control with, or controlled by the person in question; and the term “control” means the possession, directly or indirectly, of the last remaining member 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.) A natural person who satisfies the foregoing definition other than subparagraph (ii) shall not be disqualified from serving as an Independent Director or Independent Manager of the SPC Party if such individual is an independent director or independent manager provided by a nationally-recognized company that provides professional independent directors or independent managers and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition except for being the independent director or independent manager of a “special purpose entity” affiliated with the borrower that does not own a direct or indirect equity interest in the borrower or any co-borrower shall not be disqualified from serving as an Independent Director or Independent Manager of the SPC Party if such individual is at the time of initial appointment, or at any time while serving as a Independent Director or Independent Manager of the SPC Party, an Independent Director or Independent Manager of a “special purpose entity” affiliated with the Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower SPC Party (other than (Aany entity that owns a direct or indirect equity interest in borrower or any co-borrower) upon if such individual is an assignment independent director or independent manager provided by Sole Member a nationally-recognized company that provides professional independent directors or independent managers. For purposes of all of its limited liability company interests in Borrower and the admission of the transfereethis paragraph, if permitted pursuant to the a “special purpose entity” is an entity, whose organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant contain restrictions on its activities substantially similar to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, those set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerSPC Party’s organizational documents.
(r) cause or permit the board of directors or managers of any SPC Party or Borrower to take any action which, under the terms of any certificate of incorporation, by-laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a vote of the board of directors or managers of each SPC Party and Borrower unless at the time of such action there shall be at least two (2) members of the board of directors or managers who are each an Independent Director or Independent Manager.
(s) fail to conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of Borrowerthe Borrower and any SPC Party.
(st) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party of Borrower independent access to its bank accounts.
(tu) Borrower has paid and shall fail to pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds to the extent it has adequate funds to do so and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not require the members of Borrower to may any additional contributions to Borrower.
(uv) Borrower has compensated and shall fail to compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, to Lender that since the date as of its formation and at all times on and after the date hereof and covenants with Lender that until such time as the Debt shall be paid in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, Each Individual Borrower does not own, and will not own any encumbered asset or property other than (A) the PropertyProperties, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperties.
(bii) No Individual Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Properties and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) No Individual Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates or constituent parties, any constituent party guarantor (a "Guarantor") of Borrower the Debt or any part thereof or any Affiliate of any constituent partyparty or Guarantor, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) No Individual Borrower has not incurred incurred, and no Individual Borrower will not incur incur, any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperties.
(ev) No Individual Borrower has not made and no Individual Borrower will not make any loans or advances to any other Person third party (including any Affiliate affiliate or constituent party, any Guarantor or any affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent partyGuarantor), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Each Individual Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Each Individual Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate or partnership formalities, as the case may be, and preserve its separate existence.
(viii) No Individual Borrower will, (i) Borrower has not terminated nor will any Individual Borrower, permit any constituent party or failed Guarantor to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity of an Individual Borrower or (ii) to correct such constituent party or supplement any provision Guarantor in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect an Individual Borrower's existence as a single purpose entity.
(hix) Each Individual Borrower has maintained and will maintain all of its books, records, financial statements books and records and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and each Individual Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official recordsreturns.
(ix) Each Individual Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any affiliate, any constituent party, any Guarantor or any Affiliate of Borrower or any constituent party of Borroweror Guarantor), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jxi) Each Individual Borrower has maintained and will endeavor 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.
(kxii) Neither No Individual Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek the dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of any Individual Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxiii) No Individual Borrower has not commingled will commingle its funds and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Person, and has held and will hold all of its assets solely in its own nameperson.
(mxiv) Each Individual 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 Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other Personperson.
(nxv) No Individual Borrower did not assume, guarantee or become obligated does and no Individual Borrower will hold itself out to be responsible for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Personperson.
(oxvi) The organizational documents of Each Individual Borrower shall provide that Borrower has and will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion maintain financial statements separate from those of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take affiliates and any action in furtherance of any of the foregoingconstituent party.
(pxvii) The organizational documents of Each Individual Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, or will allocate fairly and has maintained and shall maintain a sufficient number reasonably the salaries of employees (if any) in light of its contemplated business operationsany shared employees.
(uxviii) No Individual Borrower has compensated and shall compensate each no Individual Borrower will acquire the obligations or securities of any of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurredpartners, shareholders or members.
(vxix) Each Individual Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are for shared with any Affiliateoffice, including, without limitation, shared office spaceservices or employees.
(yxx) Except to Lender in connection with for the joint and several liability of all Individual Borrowers under the Loan, no Individual Borrower has not pledged and will not pledge its assets or properties for the benefit of any other entity or hold out its credit as being available to satisfy the obligations of others.
(xxi) Each Individual Borrower will correct any known misunderstanding regarding its separate entity.
(xxii) The General Partner will at all times comply with each of the representations, warranties, and covenants contained in this Section 4.1 as if such representation, warranty or covenant was made directly by the General Partner.
(xxiii) The charter of the General Partner shall at all times have at least one duly appointed member of its board of directors (an "Independent Director") reasonably satisfactory to Lender who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding two years (i) a shareholder of, or to secure the obligations an officer or employee of, any other Person.
(z) Individual Borrower has hador any of its shareholders, has and will have no obligation to indemnify its directorssubsidiaries or affiliates, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, disposea customer of, or encumber (except in accordance with the Loan Documents) all supplier to, any Individual Borrower or substantially all any of its assets shareholders, subsidiaries or properties affiliates, (iii) a person or acquire all other entity controlling any such shareholder, supplier or substantially all customer, or (iv) a member of the assets immediate family of any such shareholder, officer, employee, supplier or properties customer of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any director of the matters set forth General Partner. As used in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity4.1(cc)(xvii), the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and Borrower has not owned and will not own any equity interest in any other policies of a person or entity, whether through ownership of voting securities, by contract or otherwise.
Appears in 1 contract
Single Purpose. Borrower and Operating Lessee hereby represents represent and warrants warrant to, and covenants covenant with, Lender that since Agent and Lenders that, as of the date of its formation and hereof, at all times on and after the date hereof prior hereto and until such time as the Debt shall be paid in fullfull or its property is no longer subject to the Lien securing the Debt:
(a) Borrower (i) It has been, is, not owned and will be organized not own any property or any other assets other than (A) with respect to Borrower, the Property and (B) with respect to the Borrower and Operating Lessee incidental personal and intangible property relating to the ownership, leasing or operation of the Property;
(ii) It was formed solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loanengaging in, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management or operation of the Property.
(b) Borrower has not engaged and will not engage in in, any business or activity other than the acquisition, ownership, leasing, management management, financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Property;
(ciii) Borrower It has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates (other than the Loan Documents and Operating Lease), any of its constituent party of Borrower parties or any Affiliate of any constituent party, except in the ordinary course of business and contracts or agreements that are 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 from an unrelated with third party.parties;
(div) Borrower has not incurred and It will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the Property.Property and no indebtedness other than the Debt and the indebtedness described in clause (iii) of the definition of Permitted Indebtedness may be secured (subordinate or pari passu) by any personal property;
(ev) Borrower has not made and Other than as provided in the Loan Documents, it will not make any loans or advances to to, and it will not pledge its assets for the benefit of, any other Person (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.any Affiliate or constituent party or any Affiliate of any constituent party;
(fvi) Borrower has been, is, It is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and it will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.;
(gvii) Borrower It has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational limited liability company formalities (in all material respects), as the case may be, and preserve its separate existence, (i) Borrower has not terminated and it will not, to the extent possible under applicable law, nor will it permit or failed suffer any constituent party to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its organizational documents except: partnership certificate, partnership agreement, certificate of formation (i) to cure any obvious ambiguity except as required by law), limited liability company agreement, articles of incorporation and bylaws, trust or (ii) to correct other Organizational Documents or supplement any provision those of such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documents.which would adversely affect its existence as a Single Purpose Entity;
(hviii) Borrower It has maintained and will maintain all of its books, books and records, financial statements and bank accounts separate and apart from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower Person and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets it 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower consolidation is treated as a “disregarded entity” required under GAAP, permitted for tax purposes or as a matter of law, provided that any consolidated financial statements contain a note indicating that it and was or is not required to file tax returns under applicable law)its Affiliates are separate legal entities and maintain records, has not filed books of account and shall not file a consolidated federal income tax return with accounts separate and apart from any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.);
(iix) Borrower (i) It has been, and will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliates, any of its constituent parties or any Affiliate of Borrower or any constituent party of Borrowerparty), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or exercise reasonable efforts to correct any of known misunderstanding actually known to it regarding its Affiliates as a division or department or part of the other separate identity, and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.and it will reasonably allocate any overhead that is shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any officer or employee of an Affiliate;
(jx) Borrower It has maintained and will endeavor 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.;
(kxi) Neither Borrower nor any constituent party of Borrower has sought and, to To the fullest extent permitted by applicable law, neither Borrower it nor any constituent party of Borrower has nor will seek Borrower’s or effect the liquidation, dissolution, Operating Lessee’s dissolution or winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.;
(lxii) Borrower has It does not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person, and has held and will hold all of its assets solely in its own name.;
(mxiii) Borrower 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations Affiliate of any other Person and did not hold itself out to be responsible for constituent party or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume;
(xiv) Except in its capacity as a co-obligor under the Note, guarantee or become obligated for the debts or obligations of any other Person and it does not and will not hold itself or its credit out to be responsible for or have its credit or assets available to satisfy satisfy, and it has not guaranteed or otherwise become liable for, and has not and will not guarantee or otherwise become liable for, the debts debts, securities or obligations of any other Person.;
(oxv) The organizational documents If it is a limited liability company, either (a) at least one of its members is and shall be a Single Purpose Entity (the “SPE Member”) whose sole assets are its interest in the applicable Borrower or Operating Lessee and that has no less than a one percent (1%) membership interest in Obligor or Operating Lessee, and Borrower or Operating Lessee shall be deemed hereby to have made each of the other representations, warranties and covenants contained in this Section 3.36 with respect to the SPE Member, and the SPE Member shall have two (2) Independent Directors as duly appointed members of its board of directors or (b) it shall have two (2) Independent Directors on its board of managers or board of directors (as applicable);
(xvi) It has and shall, at all times, have a limited liability company agreement which provides that, for so long as the Loan is outstanding and the Property remains subject to the Lien securing the Debt, its board of directors (or (a) if Borrower or Operating Lessee is a limited liability company with a managing member SPE Member, the board of directors of the SPE Member or (b) if Borrower or Operating Lessee is a board managed limited liability company with two (2) Independent Directors on its board of directors) will not be permitted to take any action which, under applicable law or the terms of any certificate of incorporation or certificate of formation, limited liability company agreement, by-laws or any voting trust agreement with respect to any common stock, requires the vote of its board of directors or board of managers, unless at the time of such action there shall be at least two members of such board who are Independent Directors; provided, however, that, subject to any applicable Legal Requirement, its board of directors (or if Borrower or Operating Lessee is a limited liability company and is not self managed, the board of directors of its SPE Member) may, at its discretion, be permitted to take any action without regard to the preceding clause of this sentence other than the following actions, which actions may not be taken: (A) to the fullest extent permitted by law, dissolve or liquidate, in whole or in part; (B) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity unless expressly permitted hereunder or unless Obligor is concurrently paying off the Loan in accordance with the terms herein; (C) engage in any business other than the ownership, maintenance and operation of the Property or, with respect to the SPE Member (if applicable), acting as a member of Borrower shall provide that Borrower will not or Operating Lessee; (and Borrower agrees that it will not)D) institute any proceeding to be adjudicated as bankrupt or insolvent, (i) 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 petition, either voluntary such petition or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator rehabilitator, conservator, liquidator, assignee, trustee, custodian or any sequestrator (or other similar official for official) of its SPE Member or Borrower or a Operating Lessee or of any substantial portion part of its assets property, or propertiesordering the winding up or liquidation of its affairs, (iv) or make or consent to an assignment for the benefit of creditors, (v) or admit in writing Borrower’s its inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
; (pE) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to required by law, amend its SPE Member’s certificate of incorporation (if applicable) or the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member limited liability company agreement of Borrower or Operating Lessee, but only to the occurrence extent such amendment impacts the Company’s status as a Single Purpose Entity; (F) enter into any transaction with an Affiliate not in the ordinary course of any other event which terminates Borrower’s or Operating Lessee’s business; or (G) withdraw the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”)SPE Member, if applicable, or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of remove any event that causes the last remaining member of Borrower to cease to be a member Independent Director without simultaneously replacing with another Independent Director of Borrower or that causes Sole Member to cease to Operating Lessee; provided, however, clause (D) above may be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and taken with the admission affirmative consent of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and two (2) Independent Directors;
(xvii) It has no liabilities, contingent or otherwise, other than those normal and incidental to the admission ownership, operation and leasing of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; Property;
(iiixviii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower Operating Lessee shall conduct only such activities as are necessary its business so that the assumptions made with respect to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to Operating Lessee in that certain opinion letter dated the date hereof delivered by ▇▇▇▇▇▇▇ Coie LLP addressing substantive non-consolidation and other matters in connection with the Loan shall at all times be partitioned, to cause the appointment of a receiver for true and correct in all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.respects;
(rxix) Neither Borrower covenants and agrees that it or Operating Lessee will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.;
(txx) Borrower has paid and Operating Lessee have and shall pay its own liabilities and expenses, including the salaries of its own employees (employees, if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.;
(uxxi) Borrower has compensated and Operating Lessee have and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.. Upon the withdrawal or the disassociation of the Independent Director from any constituent entity of any Obligor or Operating Lessee (or from a Obligor or Operating Lessee directly), such Obligor or Operating Lessee shall immediately appoint a new director or special member or cause such entity to appoint a new director or special member that satisfies the requirements of an Independent Director under this Agreement; and
(vxxii) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating and Operating Lessee are subject to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship comply with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters limitations on powers and separateness requirements set forth in this Section 3.13, without its Organizational Documentation as of the prior consent of Lender in its sole discretionClosing Date.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (Ay) the Property, and (Bz) incidental personal property necessary for the ownershipownership or operation of the Property, leasing, management and (ii) Operating Tenant does not own and will not own any asset or property other than (y) its operating leasehold interest in the Property pursuant to the Operating Lease and (z) incidental personal property necessary for the operation of the Property.
(bi) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated, (ii) Operating Tenant will not engage in any business other than the ownership, leasing, management and operation of its operating leasehold interest in the Property pursuant to the Operating Lease, and (iii) each of Borrower and Operating Tenant will conduct and operate its business as presently conducted and operated.
(c) Except for capital contributions or distributions permitted under the terms and conditions of its respective limited liability company agreement and properly reflected on its books and records, neither Borrower has not entered and nor Operating Tenant will not enter into any contract or agreement with any Affiliate of BorrowerBorrower or Operating Tenant, any constituent party of Borrower or Operating Tenant or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’s-length basis from an unrelated with third parties other than any such party.
(d) (i) Borrower has and Operating Tenant have not incurred and will not incur any Indebtedness other than (i) with respect to Borrower, the Debt, (ii) with respect to Borrower and Operating Tenant, in the aggregate, unsecured trade payables and operational debt not evidenced by a note and (iii) with respect to Borrower and Operating Tenant, in the aggregate, Indebtedness incurred in the financing (including equipment leases) of equipment and other personal property used on the Property (“FF&E Financing”); provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of $7,000,000 in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above (other than deferred compensation for employees in the form of bonuses or other incentive compensation and other liabilities being contested to the extent permitted by, and in accordance with, the Loan Documents) and not more than sixty (60) days from the date due as to the matters in subclause (iii) above and (z) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Neither Borrower nor Operating Tenant has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesrespective Affiliates or any other Person.
(f) Each of Borrower has been, is, and Operating Tenant is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its respective assets as the same shall become due.
(g) Each of Borrower and Operating Tenant has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate respective existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or Operating Tenant or such constituent party without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the single purpose covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documentsis outstanding or by its terms cannot be modified without Lender’s consent.
(h) Each of Borrower has maintained and Operating Tenant will maintain all of its respective books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Neither Borrower’s nor Operating Tenant’s assets have not been will be listed as assets on the financial statement statements of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 such entity’s Affiliates provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower or Operating Tenant (as applicable) and such Affiliates and to indicate that Borrower’s or Operating Tenant’s (as applicable) assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s or Operating Tenant’s (as applicable) own separate balance sheet. Each of Borrower shall and Operating Tenant will file its own tax returns (except to the extent that unless Borrower or Operating Tenant is treated as a “tax-disregarded entity” for tax purposes and was or is entity not required to file tax returns under applicable law), has not filed and shall Borrower and Operating Tenant will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes Person unless required to be paid under by applicable law. Each of Borrower has maintained and Operating Tenant shall maintain its books, records, resolutions and agreements as official records.
(i) Each of Borrower (i) has been, and Operating Tenant will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrowereither Borrower or Operating Tenant, as applicable), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Each of Borrower has maintained and Operating Tenant will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to To the fullest extent permitted by applicable law, neither Borrower Borrower, Operating Tenant nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, merger, sale or mergerother transfer, in whole or in part, of Borrower, any sale Borrower or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of businessOperating Tenant.
(l) Neither Borrower has not commingled nor Operating Tenant will commingle the funds and will not commingle funds or other assets of Borrower itself with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Each of Borrower and Operating Tenant has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Neither Borrower did not assume, nor Operating Tenant will guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oi) The organizational documents of If either Borrower shall provide that Borrower will not or Operating Tenant is a limited partnership or a limited liability company (and Borrower agrees that it will notother than a single member limited liability company), each general partner or managing member of either of them (ieach, an “SPC Party”) file shall be a corporation or consent limited liability company whose sole asset is its interest in Borrower or Operating Tenant, as applicable, and each such SPC Party will at all times comply, and will cause Borrower or Operating Tenant’s, as applicable, to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal, resignation or the disassociation of an SPC Party from Borrower or Operating Tenant’s, as applicable, Borrower or Operating Tenant shall immediately appoint a new SPC Party whose articles or certificate of incorporation is substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners.
(ii) seek or consent to the appointment of a receiver, liquidator or any similar official for If Borrower or Operating Tenant is a substantial portion single member limited liability company, Borrower or Operating Tenant shall have at least two springing members, one of its assets which, upon the dissolution of such sole member or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, withdrawal or (vi) take any action in furtherance of any the disassociation of the foregoingsole member from Borrower or Operating Tenant, shall immediately become the sole member of Borrower or Operating Tenant’s, as applicable, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents of Borrower shall provide that, as long as any portion at all times cause there to be at least two duly appointed members of the Debt remains outstandingboard of managers who are provided by a nationally recognized company that provides professional independent directors and independent managers (each, except an “Independent Director”) of each SPC Party and of Operating Tenant reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as expressly permitted pursuant to a director of such SPC Party and Operating Tenant, and may not have been at any time during the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, director (other than as sole member (the “Sole Member”) may not resignan Independent Director), and officer, employee, partner, attorney or counsel of such SPC Party, Operating Tenant, Borrower or any Affiliate of either of them, (ii) no additional a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Operating Tenant, Borrower or any Affiliate of either of them, (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. A natural person who otherwise satisfies the foregoing definition of Independent Director except for being the independent director, manager or special member of a “special purpose entity” affiliated with the Borrower or Operating Tenant that does not own a direct or indirect equity interest in the Borrower or Operating Tenant shall not be admitted disqualified from serving as an Independent Director if such individual is at the time of initial appointment, or at any time while serving as an Independent Director, an Independent Director of a “special purpose entity” affiliated with the Borrower or Operating Tenant (other than any entity that owns a direct or indirect equity interest in the Borrower or Operating Tenant) if such individual is an independent manager, director or special member provided by a nationally-recognized company that provides professional independent managers, directors or special members. As used in this definition, the term “control” means the possession, directly or indirectly, of the power to Borrowerdirect or cause the direction of the management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents Neither Borrower nor Operating Tenant shall cause or permit the board of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence directors of any other event which terminates SPC Party or Operating Tenant to take any action which, under the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence terms of any event that causes the last remaining member certificate of Borrower incorporation, by-laws or any voting trust agreement with respect to cease to be a member of Borrower any common stock or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the under any organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member document of Borrower, if permitted pursuant to Operating Tenant or SPC Party, requires a vote of the organizational documents board of Borrower and directors of SPC Party or Operating Tenant’s, as applicable, unless at the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member action there shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as at least two members who are necessary to wind up its affairs (including the sale of its assets and properties in each an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerIndependent Director.
(r) Each of Borrower and Operating Tenant shall conduct its business so that the assumptions made with respect to Borrower and Operating Tenant in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it each of Borrower and Operating Tenant will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower, Operating Tenant or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of the Borrower, Operating Tenant and any SPC Party.
(s) Neither Borrower has not permitted and nor Operating Tenant will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Each of Borrower has paid and Operating Tenant shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Each of Borrower has compensated and Operating Tenant shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Each of Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will Operating Tenant shall allocate fairly and reasonably any overhead expenses that are shared with any an Affiliate, including, without limitation, including for shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged space and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such services performed by an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess employee of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any an Affiliate.
(ddw) Each of Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will Operating Tenant shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ffx) Each of Borrower has not formed, acquired or held and will Operating Tenant shall not form, acquire or hold any subsidiary (whether corporationcorporate, partnership, limited liability company or other entity), and Borrower has not owned and will not other) or own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full, Borrower has not at any time, does not presently, and shall not:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.;
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will or fail to conduct and operate its business as presently conducted and operated.;
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.;
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $1,000,000.00 at any one time, and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $500,000.00 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) paid within sixty (60) days of the date incurred and (y) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.;
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not or acquire obligations or securities of its Affiliates.;
(f) Borrower has been, is, and will endeavor fail to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will or fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.;
(g) Borrower has done or caused fail to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the reasonable prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documents.is outstanding or by its terms cannot be modified without Lender’s consent;
(h) Borrower has maintained and will fail to maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheetconstituent 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any Person other Person, and has paid and shall pay any taxes required to be paid under applicable law. than Cedar Shopping Centers Inc. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.;
(i) Borrower (i) has been, will fail to be, and at all times has held and will or fail to hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall fail to correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall fail to conduct business solely in its own name, (iv) has not identified or fail to maintain and utilize separate stationery, invoices and checks bearing its own name, and Borrower shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.other;
(j) Borrower has maintained and will endeavor 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.intentionally omitted;
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, Borrower nor permit any sale or other transfer constituent party of all or substantially all Borrower to do any of its assets or any sale or other transfer outside the ordinary course of business.foregoing;
(l) Borrower has not commingled commingle the funds and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.;
(m) Borrower has maintained and will fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.;
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not or hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.;
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file If Borrower is a limited partnership or consent a limited liability company (other than a single member limited liability company), fail to cause each general partner or managing member (each, an “SPC Party”) to be a corporation whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners;
(ii) seek If Borrower is a single member limited liability company, fail to have at least two (2) springing members, one of which, upon the dissolution of such sole member or consent to the appointment of a receiver, liquidator withdrawal or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any disassociation of the foregoingsole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents fail to cause there to be one duly appointed member of the board of directors who are provided by a nationally recognized company that provides professional independent directors (each, an “Independent Director”) of Borrower reasonably satisfactory to Lender who shall provide thatnot have been at the time of such individual’s appointment or at any time while serving as a director of Borrower, as long as and may not have been at any portion of time during the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, preceding five years (i) Guarantora stockholder, director (other than as sole member (the “Sole Member”) may not resignan Independent Director), and officer, employee, partner, attorney or counsel of Borrower or any Affiliate of either of them, (ii) no additional a customer, supplier or other Person who derives any of its purchases or revenues from its activities with Borrower or any Affiliate (other than payment for services as an Independent Director), (iii) a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. (For purposes of this subclause (p), the term “Affiliate” means any person controlling, under common control with, or controlled by the person in question; and 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.) A natural person who satisfies the foregoing definition other than subparagraph (ii) shall not be admitted disqualified from serving as an Independent Director if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition except for being the independent director of a “special purpose entity” affiliated with the borrower that does not own a direct or indirect equity interest in the borrower or any co-borrower shall not be disqualified from serving as an Independent Director of the SPC Party if such individual is at the time of initial appointment, or at any time while serving as a Independent Director of the SPC Party, an Independent Director of a “special purpose entity” affiliated with the Borrower or the SPC Party (other than any entity that owns a direct or indirect equity interest in borrower or any co-borrower) if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities substantially similar to Borrowerthose set forth in the SPC Party’s organizational documents.
(q) The organizational documents cause or permit the board of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member directors of Borrower to cease take any action which, under the terms of any certificate of incorporation, by laws or any voting trust agreement with respect to be a member of Borrower any common stock or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the under any organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member document of Borrower, if permitted pursuant to requires a vote of the organizational documents board of directors of each SPC Party and Borrower and unless at the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member action there shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing at least one (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in who is an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerIndependent Director.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrowerintentionally omitted.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall fail to pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall funds or fail to maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall fail to compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Each of Borrower and Operating Lessee hereby represents and warrants to, and covenants with, Lender that since the date of its formation (except in connection with the Prior Loan) and at all times on and after the date hereof and until such time as the Debt shall be paid in full, such entity:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of (A) with respect to Borrower, acquiring, owning, leasingmanaging, managing maintaining and operating the Property, and (B) with respect to Operating Lessee, leasing, managing, maintaining and operating the Property, and in each case, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) with respect to Borrower, the Property, and (B) with respect to Operating Lessee, its leasehold interest in the Property, and in each case incidental personal property necessary for the ownershipownership or the foregoing. Since its formation and through the date hereof, leasing, management or operation of neither Borrower nor Operating Lessee has conducted any business other than activities related to the Propertyforegoing.
(b) Borrower has not engaged and will not engage in any business or activity other than (A) with respect to Borrower, acquiring, owning, managing, maintaining and operating the acquisitionProperty, ownershipand (B) with respect to Operating Lessee, leasing, management managing, maintaining, and operation operating the Property, and in each case, such other activities as may be incidental thereto, and each of the Property Borrower and Borrower Operating Lessee will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of BorrowerBorrower or Operating Lessee, any constituent party of Borrower or Operating Lessee or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to it than those that would be available on an arm’s-length basis from an unrelated third party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the DebtDebt and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding two percent (2%) of the original aggregate principal amount of the Loan and the Mezzanine Loan at any one time (excluding any leasing costs or capital expenses incurred in accordance with the Loan Documents), and (iii) any payments required to be made under any Interest Rate Protection Agreement entered into in accordance with this Agreement; provided that any Indebtedness incurred pursuant to clause (ii) shall be (A) outstanding not more than sixty (60) days and (B) incurred in the ordinary course of business (such Indebtedness which satisfies the conditions of the preceding clauses (ii)(A) and (ii)(B), “Permitted Trade Payables”). No Indebtedness, other than the Debt, may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person (including any Affiliate of BorrowerBorrower or Operating Lessee, any constituent party of Borrower or Operating Lessee or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due; provided, however, that this provision shall not require any direct or indirect equity owner of Borrower or Operating Lessee to make any capital contributions to such entity.
(g) Borrower (i) has done or caused to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (iii) Borrower has not terminated or failed to comply with and with, will not terminate or fail to comply with the provisions of its organizational documentsOrganizational Documents, (iiiii) Borrower has not amended, modified or otherwise changed its organizational documents Organizational Documents from those in effect as of the Closing Date, and (iiiiv) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, Borrower the Rating Agencies have issued a Rating Agency Confirmation in connection therewith, will not amend, modify or otherwise change its organizational documents except: (i) Organizational Documents with respect to cure any obvious ambiguity matters set forth in this Section 3.1.24 or (ii) to correct otherwise amend, modify or supplement otherwise change its Organizational Documents in any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsmaterial respect without Lender’s prior consent.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other PersonPerson (except as required pursuant to the Loan Documents). Neither Borrower’s nor Operating Lessee’s assets have not been or will be listed as assets on the financial statement of any other Person; provided, however, that Borrower’s its assets may have been or may be included in a consolidated financial statement of its Affiliates; provided that, (i) if applicable, (i) appropriate notation (e.g., footnote) notations were made or will be made on such consolidated financial statements to indicate the separateness of Borrower or Operating Lessee, as applicable, and such Affiliates and to indicate that Borrower’s or Operating Lessee’s, assets and credit credit, as applicable, were not and will not be available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets or 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s or Operating Lessee’s, as applicable, own separate balance sheet. Borrower .
(i) has filed and shall file its own tax returns (except to the extent that Borrower it was or is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), ) and has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower .
(j) has maintained and shall maintain its books, records, resolutions and agreements as official records.
(ik) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or Operating Lessee or any constituent party of BorrowerBorrower or Operating Lessee), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(jl) Borrower has maintained and will endeavor 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 this provision shall not require any direct or indirect equity owner of Borrower or Operating Lessee to make any capital contributions to such entity.
(km) Neither neither Borrower nor Operating Lessee nor any constituent party of Borrower or Operating Lessee has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect effect, the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of BorrowerBorrower or Operating Lessee, any sale or other transfer of all or substantially all of its Borrower’s or Operating Lessee’s assets or any sale or other transfer by Borrower or Operating Lessee outside the ordinary course of businessbusiness except for the Transfer of an Individual Property in connection with the release of such Individual Property pursuant to Section 2.6.4 hereof.
(ln) Borrower has not commingled and will not commingle its funds or other assets of Borrower with those of any Affiliate or constituent party or any other PersonPerson (except as may be required pursuant to the Loan Documents), and has held and will hold all of its assets solely in its own name.
(mo) 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 Affiliate or constituent party or any other Person.
(np) Borrower except for the Loan (or the Prior Loan), did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower , and will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oq) The organizational documents of Borrower its Organizational Documents shall provide that its business and affairs shall be managed by or under the direction of Borrower’s Sole Member or Operating Lessee’s Sole Member, as applicable, and at all times it shall have at least two (2) duly appointed individuals as directors or managers (each, an “Independent Director”), each of whom (i) has at least three (3) years prior employment experience and continues to be employed as an independent director, independent manager or independent member 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, independent managers and independent members, another nationally-recognized company that provides such services and which is reasonably approved by Lender; (ii) is not, and has never been, on the board of directors or managers of any Borrower, Operating Lessee, or any Affiliate of Borrower or Operating Lessee other than as an independent director in a capacity similar to an Independent Director; provided that the fees or other compensation that such individual earns by serving as an Independent Director of Borrower, Operating Lessee one or more Affiliates of Borrower or Operating Lessee in any given year constitute, in the aggregate, less than five percent (5%) of such individual’s income for such year; and (iii) is not, and has never been, and will not, while serving as an Independent Director be, any of the following: (A) a stockholder, director, manager, officer, employee, partner, or member of Borrower or Operating Lessee, any Affiliate of Borrower or Operating Lessee or any direct or indirect equity holder of any of them, (B) a creditor, customer, supplier, service provider (including provider of professional services) or other Person who derives any of its purchases or revenues from its activities with Borrower or Operating Lessee or any Affiliate of Borrower or Operating Lessee (other than a nationally-recognized company that routinely provides professional independent directors, independent managers or independent members and other corporate services to Borrower or Operating Lessee or any Affiliate of Borrower or Operating Lessee in the ordinary course of its business), (C) a member of the immediate family of any such stockholder, director, manager, officer, employee, partner, member, creditor, customer, supplier, service provider or other Person, or (D) a Person Controlling or under common Control with any of subclauses (A), (B) or (C) above. A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) by reason of (I) being, having been or becoming an Independent Director of Borrower, Operating Lessee, or an Affiliate of Borrower or Operating Lessee that is not in the direct chain of ownership of Borrower, Borrower’s Sole Member, Operating Lessee, or Operating Lessee’s Sole Member, and that is required by a creditor to be a “single purpose entity”; provided that such Independent Director is, was or will be employed by a company that routinely provides professional independent directors, independent managers or independent members, or (II) being, having been or becoming a member of Borrower or Operating Lessee, as applicable, pursuant to an express provision in its operating agreement providing for the appointment of such Independent Director as a member of Borrower or Operating Lessee, as applicable, upon the occurrence of any event pursuant to which Borrower’s Sole Member or Operating Lessee’s Sole Member, as applicable, ceases to be a member of Borrower or Operating Lessee, as applicable, (including the withdrawal or dissolution of Borrower’s Sole Member or Operating Lessee’s Sole Member). A natural person who satisfies the foregoing definition other than clause (iii) shall not be disqualified as a result of clause (iii)(A) or (iii)(B) by reason of being, having been or becoming an Independent Director of a “single purpose entity” affiliated with Borrower or Operating Lessee; provided that the fees or other compensation that such individual earns by serving as an Independent Director of one or more Affiliates of Borrower or Operating Lessee in any given year constitute, in the aggregate, less than five percent (5%) of such individual’s income for such year. Notwithstanding the foregoing or anything to the contrary herein, each such Independent Director may serve as the independent director for both Borrower and Operating Lessee. The Organizational Documents of Borrower and Operating Lessee shall provide that no Independent Director of Borrower or Operating Lessee, as applicable, may be removed or replaced without Cause, and unless Borrower or Operating Lessee, as applicable, provides Lender with not less than three (3) Business Days’ prior notice of (1) any proposed removal of any Independent Director, together with a statement as to the reasons for such removal, and (2) the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in the Organizational Documents of Borrower or Operating Lessee, as applicable, relating to an Independent Director. In addition, the Organizational Documents of Borrower and Operating Lessee shall provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” and “separateness” provisions of such Organizational Documents. As used in this paragraph, the term “single purpose entity” shall mean a Person whose Organizational Documents contain, and who covenants that such Person shall comply or cause compliance with, provisions substantially similar to those set forth in this Section 3.1.24.
(r) its Organizational Documents shall provide that (i) its directors or managers shall not take any action which, under the terms of any Organizational Documents (including, if applicable, any voting trust agreement with respect to any common stock), requires a unanimous vote of the directors or managers of Borrower or Operating Lessee, as applicable, unless, at the time of such action, there shall be at least two (2) directors or managers who are Independent Directors (and such Independent Directors have participated in such vote), (ii) it will not (and each of Borrower agrees and Operating Lessee agree that it will not), without the unanimous consent of its directors or managers, including the consent of each Independent Director, (iA) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (iiB) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or Operating Lessee, as applicable, or a substantial portion of its assets or properties, (ivC) make an assignment for the benefit of creditors, (vD) admit in writing Borrower’s its inability to pay its debts generally as they become due, (E) declare or effectuate a moratorium on the payment of any obligations, or (viF) collude with any other Person or take any action in furtherance of intended to further any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply when voting with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.respec
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in fullthat:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) It has not owned, does not own, owned and will not own any asset property or property any other assets other than (A) the Property, Property and (B) incidental personal and intangible property necessary for relating to the ownership, leasing, management maintenance or operation of the Property.
(bii) Borrower It has not engaged and will not engage in any business or activity other than the acquisitionownership, ownershipmanagement, leasing, management maintenance, financing and operation of the Property and Borrower will conduct and operate its business as presently conducted and operatedProperty.
(ciii) Borrower Other than the existing Management Agreement with the Current Manager and the Affiliate Office Leases, it has not entered and will not enter into any contract or agreement with any Affiliate of Borrowerits Affiliates, any of its constituent party of Borrower parties or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated with third partyparties.
(div) Borrower It has not incurred and will not incur any Indebtedness other than the Debt. No Indebtednessindebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the DebtPermitted Indebtedness. Except as set forth in the immediately preceding sentence, no indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty or any portion thereof.
(ev) Borrower It has not made and will not make any loans or advances to any other Person (including any Affiliate of Borrower, any or constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Borrower has been, is, It is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower It has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities corporate, partnership or limited liability company formalities, as the case may be, and preserve its separate existence, (i) Borrower has not terminated and it will not, nor will it permit or failed suffer any constituent party to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, operating agreement, articles of incorporation and bylaws, trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision those of such constituent party in a manner consistent with the intent of this Agreement and the other Loan Documentswhich would adversely affect its existence as a Single Purpose Entity.
(hviii) Borrower has maintained and It will maintain all of its books, records, financial statements books and records and bank accounts separate from those of any other Person (including its Affiliates Affiliates, any constituent party and any other Person. Borrower’s assets have not been listed as assets on the financial statement Affiliate of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (iconstituent party) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s assets it 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower consolidation or inclusion is treated required as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable matter of law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, It will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any of its Affiliates, any of its constituent parties or any Affiliate of Borrower or any constituent party of Borrowerparty), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized name and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jx) Borrower has maintained and It will endeavor 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.
(kxi) Neither Borrower it nor any of its constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower parties will seek its dissolution or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and It will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any Affiliate of any constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiii) Borrower 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 Affiliate or constituent party or any Affiliate of any constituent party or any other Person.
(nxiv) Borrower did It has not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not held and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oxv) The organizational documents of Borrower shall provide that Borrower will not If it is a limited partnership (and Borrower agrees that it will notor a limited liability company), (i) file at least one of its general partners (or consent to the filing of any petitionmanaging member) shall be a Single Purpose Entity that is a corporation whose sole assets are its interest in Borrower, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion at least one of its general partners shall be a limited liability company which shall have at least two (2) members, one of which shall be the managing member and which shall be a Single Purpose Entity that is a corporation whose sole assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit are its interest in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resignsuch limited liability company, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first deemed hereby to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all made each of the representations, warranties and covenants contained in this Section 3.134.1(cc) with respect to such general partner (or such managing member of such general partner) or managing member, as applicable.
(xvi) It shall at all times cause there to be at least one duly appointed member of its board of directors (or if Borrower is a general partnership or limited partnership (or a limited liability company), the board of directors of its general partner (or managing member or the board of directors of the managing member of its general partner)) (an “Independent Director”) who shall not be at the time of such individual’s appointment, who shall not be during the term of such individual’s appointment and shall not have been at any time during the two years preceding his or her appointment (i) a member, stockholder, partner, director, officer or employee of Borrower or any of Borrower’s Affiliates; or (ii) all affiliated with a significant customer or supplier of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other Person receiving a material portion of his or her compensation or other financial remuneration from or who is otherwise financially dependent on, Borrower, an officer, director or employee of Borrower or any of Borrower’s Affiliates or an officer’s, director’s or employee’s family member by blood or marriage or a business activity, entity owned or amend its organizational documents with respect to controlled by any of the matters set forth foregoing; or (iv) a spouse, parent, sibling or child of any person described by (i), (ii) or (iii) above. As used in this Section 3.134.1(cc)(xvi), without the prior consent term “controlled” means the ownership of Lender in its sole discretion.
(bb) Borrower will consider 10% or more of the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or voting securities of any Persona Person or the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person whether through ownership of voting securities, by contract or otherwise.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate affiliate of the Borrower, any constituent party of Borrower or any Affiliate affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has not incurred and will not incur any Indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than the Debt and such other obligations permitted pursuant to SECTION 6.5 of the Mortgage. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passuPARI PASSU) by the Property.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower affiliate or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliatesaffiliates.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct or supplement any provision in a manner consistent with SPC Managing Member without the intent prior written consent of this Agreement and the other Loan DocumentsLender.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of constituent party and Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable lawreturns. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own namechecks.
(jx) Borrower has maintained and will endeavor 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.
(kxi) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lxii) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(mxiii) 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 Affiliate affiliate or constituent party or any other Person.
(nxiv) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(oxv) The organizational documents If Borrower is a limited liability company, each managing member is a corporation whose sole asset is its interest in Borrower (the "SPC MANAGING MEMBER") and the SPC Managing Member will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this SECTION 4.1(dd) as if such representation, warranty or covenant was made directly by the SPC Managing Member.
(xvi) Borrower shall provide that Borrower will at all times cause there to be at least one duly appointed member of the board of directors (an "Independent Director") of the SPC Managing Member reasonably satisfactory to Lender who shall not (have been at the time of such individual's appointment, and Borrower agrees that it will not), may not have been at any time during the preceding five years (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become dueshareholder of, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide thatan officer, as long as any portion of the Debt remains outstandingdirector, except as expressly permitted pursuant to the terms of the Loan Documentspartner or employee of, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets shareholders, subsidiaries or properties to be partitionedaffiliates, to cause the appointment of (ii) a receiver for all customer of, or supplier to, Borrower or any portion of its shareholders, subsidiaries or affiliates, (iii) a person or other entity controlling or under common control with any such shareholder, partner supplier or customer, or (iv) a member of the assets immediate family of any such shareholder, officer, director, partner, employee, supplier or properties customer of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination other director of Borrower.
(rxvii) Borrower covenants and agrees that it will comply with shall not cause or cause permit the compliance with, (i) all board of directors of the representationsSPC Managing Member to take any action which, warranties and covenants in this Section 3.13under the terms of any certificate of incorporation, and (ii) all by- laws or any voting trust agreement with respect to any common stock, requires a vote of the organizational documents board of Borrowerdirectors of the SPC Managing Member of Borrower unless at the time of such action there shall be at least one member who is an Independent Director.
(sxviii) Borrower has not permitted shall conduct its business so that the assumptions made with respect to Borrower in that certain opinion letter dated the date hereof (the "Insolvency Opinion") delivered by ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ in connection with the Loan shall be true and correct in all respects.
(xix) Borrower will not permit any Affiliate (other than Sole Member pursuant to Manager in connection with the terms discharge of its obligations under the organizational documents of BorrowerManagement Agreement) or constituent party independent access to its bank accounts.
(txx) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(uxxi) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) . Upon the withdrawal or the disassociation of the SPC Managing Member from Borrower, Borrower has not (i) filed shall immediately appoint a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating new member whose articles of incorporation are substantially similar to those of the SPC Managing Member and deliver a new non- consolidation opinion to the relief from debts Rating Agency or the protection of debtors generallyRating Agencies, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in new special purpose member and its sole discretionequity owners.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full, Borrower has not at any time, does not presently, and shall not:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the Property, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.;
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will or fail to conduct and operate its business as presently conducted and operated.;
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.;
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $1,000,000.00 at any one time, and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $500,000.00 in the aggregate; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) paid within sixty (60) days of the date incurred and (y) incurred in the ordinary course of business. No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.;
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not or acquire obligations or securities of its Affiliates.;
(f) Borrower has been, is, and will endeavor fail to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will or fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.;
(g) Borrower has done or caused fail to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the reasonable prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documents.is outstanding or by its terms cannot be modified without Lender's consent;
(h) Borrower has maintained and will fail to maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Borrower’s 's assets will not be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s 's assets may be included in a consolidated financial statement of its Affiliates provided that (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s 's own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any Person other Person, and has paid and shall pay any taxes required to be paid under applicable law. than Cedar Shopping Centers Inc. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.;
(i) Borrower (i) has been, will fail to be, and at all times has held and will or fail to hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall fail to correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall fail to conduct business solely in its own name, (iv) has not identified or fail to maintain and utilize separate stationery, invoices and checks bearing its own name, and Borrower shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.other;
(j) Borrower has maintained and will endeavor 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.intentionally omitted;
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, Borrower nor permit any sale or other transfer constituent party of all or substantially all Borrower to do any of its assets or any sale or other transfer outside the ordinary course of business.foregoing;
(l) Borrower has not commingled commingle the funds and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.;
(m) Borrower has maintained and will fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.;
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not or hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.;
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file If Borrower is a limited partnership or consent a limited liability company (other than a single member limited liability company), fail to cause each general partner or managing member (each, an "SPC PARTY") to be a corporation whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners;
(ii) seek If Borrower is a single member limited liability company, fail to have at least two (2) springing members, one of which, upon the dissolution of such sole member or consent to the appointment of a receiver, liquidator withdrawal or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any disassociation of the foregoingsole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) The organizational documents fail to cause there to be one duly appointed member of the board of directors who are provided by a nationally recognized company that provides professional independent directors (each, an "INDEPENDENT DIRECTOR") of Borrower reasonably satisfactory to Lender who shall provide that, as long as any portion of not have been at the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative time of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence individual's appointment or at any time while serving as a director of Borrower, and may not have been at any time during the preceding five years (2i) to the admission of the personal representative or its nominee or designeea stockholder, director (other than as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly mannerIndependent Director), and its assets and properties shall be applied in the mannerofficer, and in the order employee, partner, attorney or counsel of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any Affiliate of its assets or properties to be partitionedeither of them, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all a customer, supplier or other Person who derives any of the organizational documents of Borrower.
(s) its purchases or revenues from its activities with Borrower has not permitted and will not permit or any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds payment for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or propertiesas an Independent Director), (iii) made a Person or other entity controlling or under common control with any assignment for the benefit of Borrower’s creditors such stockholder, partner, customer, supplier or other Person, or (iv) admitted a member of the immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person. (For purposes of this subclause (p), the term "Affiliate" means any person controlling, under common control with, or controlled by the person in writing Borrower’s inability question; and the term "control" means the possession, directly or indirectly, of the power to pay its debts generally as they become due. Borrower will not (A) file a bankruptcydirect or cause the direction of management, insolvency policies or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment activities of a receiverperson or entity, liquidatorwhether through ownership of voting securities, assignee, trustee, sequestrator, custodian by contract or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (Cotherwise.) make any assignment for A natural person who satisfies the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any foregoing definition other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; than subparagraph (ii) sell, transfer, disposeshall not be disqualified from serving as an Independent Director if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition except for being the independent director of a "special purpose entity" affiliated with the borrower that does not own a direct or indirect equity interest in the borrower or any co-borrower shall not be disqualified from serving as an Independent Director of the SPC Party if such individual is at the time of initial appointment, or encumber (except in accordance at any time while serving as a Independent Director of the SPC Party, an Independent Director of a "special purpose entity" affiliated with the Loan DocumentsBorrower or the SPC Party (other than any entity that owns a direct or indirect equity interest in borrower or any co-borrower) all or substantially all if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activitythis paragraph, or amend its a "special purpose entity" is an entity, whose organizational documents with respect contain restrictions on its activities substantially similar to any of the matters those set forth in this Section 3.13, without the prior consent of Lender in its sole discretionSPC Party's organizational documents.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower and Parent hereby represents and warrants to, and covenants with, Lender Administrative Agent and Lenders that since as of the date of its formation and at all times on and after the date hereof Closing Date and until such time as the Debt shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, own and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyProperty and (C) the other Collateral.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and the Collateral in connection with the Property and Borrower will conduct and operate its business as presently conducted and operated.
(ciii) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of BorrowerBorrower (other than a Loan Party), any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(div) Borrower has not incurred and will not incur any Indebtedness other than the Debt. No indebtedness (including without limitation Guaranteed Indebtedness), secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the Debt, Debt and the FF&E Financings. No indebtedness other than the Debt may be secured (senior, subordinate or pari passu) by the PropertyProperty except that FF&E Financings permitted hereunder may be secured by the furniture, fixtures and equipment purchased in connection with such financings.
(ev) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(fvi) Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party of Borrower to, amend, modify or otherwise change its the partnership agreement, partnership certificate, articles of incorporation, bylaws, articles of organization, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity of Borrower or (ii) to correct or supplement any provision in a manner consistent with such constituent party without the intent prior written consent of this Agreement and the other Loan DocumentsAdministrative Agent.
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(l) Borrower has not commingled and will not commingle funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.constituent
Appears in 1 contract
Sources: Loan Agreement (Bristol Hotel Co)
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date of its formation and at all times on and after the date hereof and until such time as the Debt Obligations shall be paid and performed in full:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into and performing its obligations under this Agreement with the Loan DocumentsLender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership, leasing, management ownership or operation of the Property.
(b) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, and substantially similar no less favorable to those that it than would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other than (i) the Debt, and (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding two percent (2%) of the original principal amount of the Loan at any one time; provided that any Indebtedness incurred pursuant to subclause (ii) shall be (A) outstanding not more than sixty (60) days, and (B) incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as "Permitted Indebtedness"). No Indebtedness, Indebtedness other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Borrower has been, is, and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and Borrower has not and will not, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented and (B) following a Securitization of the Loan, the applicable Rating Agencies have issued a Rating Agency Confirmation in writingconnection therewith, Borrower will not amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: (i) to cure any obvious ambiguity or (ii) to correct or supplement any provision in a manner consistent with the intent of this Agreement and the other Loan Documentsall material respects.
(h) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s 's assets have will not been be listed as assets on the financial statement of any other Person; , provided, however, that Borrower’s 's assets may have been be included in a consolidated financial statement of its Affiliates; Affiliates provided that, if applicable, that (i) appropriate notation (e.g., footnote) were shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s 's assets and credit were are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s 's own separate balance sheet. Borrower shall will file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will endeavor 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, nothing herein shall require any partners or members of Borrower to make additional capital contributions.
(k) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower or will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale, division (including, without limitation, any "Division" pursuant to Section 18-217 of the Delaware Limited Liability Company Act, 6 Del. C. §18-101, et seq.) or merger, in whole or in part, of Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.
(lI) Borrower has not commingled and will not commingle the funds or and other assets of Borrower with those of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets solely in its own name.
(m) 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 Affiliate or constituent party or any other Person.
(n) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (i) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Each Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as either (1) the Debt Obligations shall be paid and performed in fullfull or (2) such Borrower has been released from its obligations under the Loan Documents in connection with a Defeasance Event pursuant to Section 2.5.3 hereof or a substitution of properties pursuant to Section 2.6 hereof:
(a) No Borrower (i) has been, is, and owns or will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the Property, its respective Property and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the such Property.
(b) No Borrower has not engaged and or will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the its respective Property and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Such Borrower has not entered and will not enter into any contract or agreement with any Affiliate of any Borrower, any constituent party of any Borrower or any Affiliate of any constituent party, except in the ordinary course of business and (i) upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available on an arm’sarms-length basis from an unrelated with third parties other than any such party, (ii) in connection with the Loan, and (iii) the Operating Lease to which such Borrower is a party.
(d) Such Borrower has not incurred and will not incur incur, and such Borrower shall not permit Operating Lessee pursuant to the related Operating Lease to incur, any Indebtedness other than (i) with respect to such Borrower, the Debt, and (ii) with respect to Operating Lessee, (A) unsecured trade payables and short term operational debt not evidenced by a note and (B) equipment financing that is not secured by a Lien on any Property except the equipment financed, all of which debt under the preceding clauses (A) and (B) does not and will not exceed in the aggregate, including such trade payables, short term operational debt and equipment financing of Operating Lessee as to the Properties owned by the other Borrowers, $2,000,000.00 at any one time; provided that any Indebtedness incurred pursuant to the preceding clause (ii)(A) shall not be outstanding for more than sixty (60) days (except to the extent that such indebtedness or the validity thereof is being duly and diligently contested by such Borrower in accordance with all applicable Legal Requirements) and shall be incurred in the ordinary course of business (the Indebtedness described in the foregoing clauses (i) and (ii) is referred to herein, collectively, as “Permitted Indebtedness”). No Indebtedness, Indebtedness other than the Debt, Debt and Permitted Encumbrances may be secured (senior, subordinate or pari passu) by any of the PropertyProperties.
(e) Such Borrower has not made and will not make any loans or advances to any other Person third party (including Operating Lessee, any other Affiliate of Borrower, such Borrower or any Pool 1 constituent party of Borrower or any Affiliate of any constituent partysuch Borrower), and has not acquired and shall not acquire obligations or securities of its Affiliates.
(f) Such Borrower has been, is, is and will endeavor intends to remain solvent and, except as contemplated by this Agreement wherein Borrowers are jointly and severally liable, such Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) to the extent of available funds from its own assets as the same shall become due.
(g) Such Borrower has done or caused to be done, and will do and cause to be donedo, all things necessary to observe its organizational formalities and preserve its separate existence, and such Borrower will not, nor will such Borrower permit SPE Party to, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, or (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writingwriting and (B) following a Securitization of the Loan, Borrower will not the applicable Rating Agencies have issued a Rating Agency Confirmation in connection therewith, amend, modify or otherwise change any term or provision of its partnership certificate, partnership agreement, articles of incorporation and bylaws, certificate of formation, limited liability company operating agreement, trust or other organizational documents except: (i) that in any way relates or pertains to cure any obvious ambiguity or (ii) to correct or supplement any provision the matters set forth in a manner consistent with the intent of this Agreement and the other Loan DocumentsSection 3.1.24.
(h) Such Borrower has maintained and will maintain all of its separate books, records, financial statements and bank accounts separate from those of its Affiliates and any other Person. Borrower’s assets have not been listed as assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. Such Borrower’s assets will not be listed as assets on the financial statement of any other Person; , provided, however, that such Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (A) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of such Borrower and such Affiliates and to indicate that such 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 separate balance sheet. Such Borrower shall will file its own tax returns (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Such Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(i) Such Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including Operating Lessee, any other Affiliate of such Borrower or any constituent party of such Borrower), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.
(j) Such Borrower has maintained and will endeavor intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither such Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of such Borrower will seek or effect the liquidation, dissolution, winding up, consolidation consolidation, asset sale or merger, in whole or in part, of such Borrower, any sale or other transfer of all or substantially all of its assets or any sale or other transfer outside the ordinary course of business.. Pool 1
(l) Except as contemplated by this Agreement, such Borrower has not commingled and will not commingle the funds or and other assets of such Borrower with those of any Affiliate or constituent party of such Borrower or any other Person, and has held and will hold all of its assets solely in its own name.
(m) Such 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 Affiliate or constituent party of such Borrower or any other Person.
(n) Except as contemplated by this Agreement, such Borrower did has not assume, assumed or guaranteed and will not assume or guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) Each Borrower’s general partner (the “SPE Party”) shall be a single member limited liability company whose sole asset is its interest in such Borrower and the other Borrowers, and SPE Party (i) will cause each Borrower to comply with each of the representations, warranties and covenants contained in this Section 3.1.24; (ii) will at all times comply with each of the representations, warranties and covenants contained in this Section 3.1.24 (other than subsections (a), (b) and (d)) as if such representation, warranty or covenant was made directly by SPE Party; (iii) will not engage in any business or activity other than owning an interest in each Borrower; (iv) will not acquire or own any assets other than its partnership interest in each Borrower; and (v) will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation) other than unsecured trade payables incurred in the ordinary course of business related to the ownership of an interest in each Borrower that (A) do not exceed at any one time $50,000.00 in the aggregate with respect to all Borrowers, and (B) are paid within thirty (30) days after the date incurred. Upon the withdrawal or the disassociation of SPE Party from Borrowers, Borrowers shall immediately appoint a new SPE Party whose certificate of formation and limited liability company operating agreement is substantially similar to those of such withdrawing SPE Party and deliver a new non-consolidation opinion to Lender and the Rating Agency or Rating Agencies, as applicable, with respect to the new SPE Party and its equity owners.
(p) The organizational documents of Borrower SPE Party shall provide that the business and affairs of SPE Party shall be managed by or under the direction of a board of one or more directors or managers designated by the sole member of SPE Party, and at all times there shall be at least two (2) duly appointed individuals (each, an “Independent Director”) on the board of directors or managers of SPE Party who are reasonably satisfactory to Lender and who shall not have been at the time of such individual’s appointment or at any time while serving as an Independent Director (except pursuant to an express provision in SPE Party’s operating agreement providing for the appointment of such Independent Director to become a “special member” upon the sole member of SPE Party ceasing to be a member of SPE Party), and may not have been at any time during the preceding five (5) years (i) a stockholder, director (other than as an Independent Director of SPE Party), officer, employee, partner, member, attorney or counsel of any Borrower, SPE Party, any Affiliate of any of them or any direct or indirect parent of any of them, (ii) a customer, supplier or other person who derives any of its purchases or Pool 1 revenues from its activities with any Borrower or any Affiliate of any Borrower, (iii) a person Controlling any such stockholder, director, officer, employee, partner, member, customer, supplier or other Person, or (iv) a member of the immediate family of any such stockholder, director, officer, employee, partner, member, customer, supplier or other person. A natural person who otherwise satisfies the foregoing definition except for being the independent director or independent manager of a “special purpose entity” affiliated with any Borrower shall not be disqualified from serving as an Independent Director of SPE Party if such person is an independent director or independent manager provided by a nationally-recognized company that provides professional independent directors or managers in the ordinary course of its business. As used herein, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies or activities of such Person, whether through ownership of voting securities, by contract or otherwise.
(q) The organizational documents of SPE Party shall provide that the board of directors or managers of SPE Party shall not take any action which, under the terms of any certificate of formation, limited liability company operating agreement or any voting trust agreement, requires an unanimous vote of the board of directors or managers, including the Independent Directors, of SPE Party unless at the time of such action there shall be at least two (2) members of the board of directors or managers who are Independent Directors (and such Independent Directors shall have participated in such vote). SPE Party will not (and Borrower agrees that it will not)without the unanimous written consent of its board of directors or managers, including the Independent Directors, on behalf of itself or any Borrower, (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower official, (iii) take any action that might cause such entity to become insolvent, or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(pr) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding, upon the occurrence of any event that causes the sole member of SPE Party to cease to be a member of SPE Party (other than (A) upon an assignment by such sole member of all of its limited liability company interests in SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of SPE Party and the Loan Documents, or (B) the resignation of such sole member and the admission of an additional member of SPE Party, if permitted pursuant to the organizational documents of SPE Party and the Loan Documents), one of the persons acting as an Independent Director of SPE Party shall, without any action of any Person and simultaneously with the sole member of SPE Party ceasing to be a member of SPE Party, automatically be admitted as the sole member of SPE Party (which may be a non-economic member) (the “Special Member”) and shall preserve and continue the existence of SPE Party without dissolution. The organizational documents of SPE Party shall further provide that for so long as any portion of the Obligations is outstanding, no Special Member may resign or transfer its rights as Special Member unless (i) a successor Special Member has been admitted to SPE Party as a Special Member, and (ii) such successor Special Member has also accepted its appointment as an Independent Director. Pool 1
(s) The organizational documents of SPE Party shall provide that, as long as any portion of the Obligations remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documentsthis Agreement, (i) Guarantor, as the sole member (the “Sole Member”) of SPE Party may not resign, and (ii) no additional member shall be admitted to BorrowerSPE Party.
(qt) The organizational documents of Borrower SPE Party shall provide that, as long as any portion of the Debt Obligations remains outstanding: (i) Borrower SPE Party shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower SPE Party or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower SPE Party in Borrower SPE Party unless the business of Borrower SPE Party is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower SPE Party to cease to be a member of Borrower SPE Party or that causes Sole Member the sole member of SPE Party to cease to be a member of Borrower SPE Party (other than (A) upon an assignment by Sole Member such sole member of all of its limited liability company interests in Borrower SPE Party and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents, or (B) the resignation of Sole Member such sole member and the admission of an additional member of BorrowerSPE Party, if permitted pursuant to the organizational documents of Borrower SPE Party and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party, agree in writing (1) to continue the existence of BorrowerSPE Party, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of BorrowerSPE Party, effective as of the occurrence of the event that terminated the continued membership of such member in BorrowerSPE Party; (iii) the bankruptcy of Sole the sole member of SPE Party or a Special Member shall not cause such Sole Member sole member or Special Member, respectively, to cease to be a member of Borrower SPE Party and upon the occurrence of such an event, the business of Borrower SPE Party shall continue without dissolution; (iv) in the event of the dissolution of BorrowerSPE Party, Borrower SPE Party shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(t) Borrower has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(u) Borrower has compensated and shall compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.SPE Party sha
Appears in 1 contract
Single Purpose. Borrower hereby represents and warrants to, and covenants with, Lender that since the date as of its formation and at all times on and after the date hereof and until such time as the Debt shall be paid in full, Borrower has not at any time, does not presently, and shall not:
(a) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the PropertyProperty and assets related to the acquisition, ownership, development, leasing, use, management or operation of the Property and (Bii) incidental personal property necessary for the acquisition, ownership, development, leasing, use, management or operation of the Property.;
(b) Borrower has not engaged and will not engage in any business or activity other than unrelated to the acquisition, ownership, development, leasing, use, management and or operation of the Property and Borrower will conduct and operate its business as presently conducted and operated.Property;
(c) Borrower has not entered except for the Permitted Encumbrances and will not other contracts or agreements disclosed in writing to Lender, enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and upon terms and conditions that are intrinsically fair, commercially reasonable, fair and substantially similar to those that would be available in a comparable transaction on an arm’sarms-length basis from an unrelated with third parties other than any such party.;
(d) incur any Indebtedness or obligations under operating leases other than (i) the Debt and all other sums due by Borrower has under this Agreement or any other Loan Documents, (ii) unsecured trade payables, operating leases with respect to the Property and operational debt not evidenced by a note and in an aggregate amount not exceeding one percent (1%) of the original principal amount of the Loan at any one time, (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property with annual payments not exceeding $5,000,000 in the aggregate; and (iv) the obligation to make termination payments or reimburse rent payable by the tenants of the Property under the agreements entered into with existing or prospective tenants of the Property with Lender’s approval; and (v) tenant improvement allowances or similar concessions to tenants of the Property pursuant to Leases; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) paid within sixty (60) days of the date incurred and will not incur (y) incurred in the ordinary course of business and any obligations under operating leases which shall be paid in accordance with their terms. No Indebtedness other than the Debt. No Indebtedness, other than the Debt, Debt may be secured (senior, subordinate or pari passu) by the Property.;
(e) Borrower has not except for advances made and will not to or for the benefit of Tenants for tenant improvement allowances or similar concessions pursuant to the Leases currently existing at the Property on the date hereof as disclosed on Schedule I attached hereto or Leases entered into after the date hereof in accordance with this Agreement, make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), and has not acquired and shall not acquire obligations or securities of its Affiliates.;
(f) Borrower has been, is, and will endeavor fail to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will or fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.due to the extent it has adequate funds to do so;
(g) Borrower has done or caused fail to be done, and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and will not terminate or fail to comply with the provisions of its organizational documents, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not not, nor will Borrower permit any constituent party to amend, modify or otherwise change its the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents except: of Borrower or such constituent party without the prior consent of Lender in any manner that (i) to cure any obvious ambiguity violates the covenants set forth in this Section 3.1.24, or (ii) to correct amends, modifies or supplement otherwise changes any provision in a manner consistent with thereof that by its terms cannot be modified at any time when the intent of this Agreement and the other Loan Documents.is outstanding or by its terms cannot be modified without Lender’s consent;
(h) Borrower has maintained and will fail to maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Borrower’s assets have will not been be listed as or list its assets on the financial statement of any other Person; provided, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (Ai) appropriate notation (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, Person and (B)such ii) such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall ;
(i) fail to file its own (or consolidated) tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file any such tax returns under applicable law), has not filed returns) and shall will not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes except where Borrower is required to be paid under file consolidated tax returns by applicable law. Borrower has maintained and shall Legal Requirements.
(j) fail to maintain its books, records, resolutions and agreements as official records.;
(ik) Borrower (i) has been, will fail to be, and at all times has held and will or fail to hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), (ii) has corrected and shall fail to correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall fail to conduct business solely in its own name, (iv) has not identified or fail to maintain and utilize separate stationery, invoices and checks bearing its own name, and Borrower shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize separate stationery, invoices and checks bearing its own name.other;
(jl) Borrower has maintained and will endeavor fail to use commercially reasonable efforts to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.; provided, however, the foregoing shall not require the members of Borrower to make any additional capital contributions to Borrower;
(km) Neither Borrower nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, Borrower nor permit any sale or other transfer constituent party of all or substantially all Borrower to do any of its assets or any sale or other transfer outside the ordinary course of business.foregoing;
(ln) Borrower has not commingled commingle the funds and will not commingle funds or other assets of Borrower with those of any Affiliate or any constituent party of Borrower or any other Person, and has held and will hold all of its assets solely in its own name.;
(mo) Borrower has maintained and will fail to maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party of Borrower or any other Person.;
(np) Borrower did not assume, guarantee or become obligated for the debts or obligations of any other Person and did not or hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.;
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file If Borrower is a limited partnership or consent a limited liability company (other than a single member limited liability company), fail to cause each general partner or managing member (each, an “SPC Party”) to be a corporation whose sole asset is its interest in Borrower and each such SPC Party will at all times comply, and will cause Borrower to comply, with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party. Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose articles of incorporation are substantially similar to those of such SPC Party and deliver a new non-consolidation opinion to the filing of any petitionRating Agency or Rating Agencies, either voluntary or involuntaryas applicable, with respect to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, the new SPC Party and its equity owners;
(ii) seek If Borrower is a single member limited liability company, fail to have at least two (2) springing members, one of which, upon the dissolution of such sole member or consent to the appointment of a receiver, liquidator withdrawal or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any disassociation of the foregoing.
(p) The organizational documents sole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower shall provide that, if the first such springing member no longer is available to serve as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as such sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrowermember.
(q) The organizational documents of Borrower shall provide that, as long as any portion fail to cause there to be at least two duly appointed members of the Debt remains outstanding: board of directors who are provided by a nationally recognized company that provides professional independent directors or manager (each, an “Independent Director” or “Independent Manager”) of each SPC Party and Borrower reasonably satisfactory to Lender who shall not have been at the time of such individual’s appointment or at any time while serving as a director of such SPC Party and Borrower, and may not have been at any time during the preceding five years (i) a stockholder, director (other than as an Independent Director or Independent Manager), officer, employee, partner, attorney or counsel of such SPC Party, Borrower shall be dissolvedor any Affiliate of either of them, (ii) a customer, supplier or other Person who derives any of its purchases or revenues from its activities with such SPC Party, Borrower or any Affiliate of either of them (other than its fees and its affairs shall be wound up, only upon the first to occur charges for serving as an Independent Director or Independent Manager of the following: SPC Party), (Aiii) the termination a Person or other entity controlling or under common control with any such stockholder, partner, customer, supplier or other Person prohibited by clause (i) or (ii) above, or (iv) a member of the legal existence immediate family of any such stockholder, director, officer, employee, partner, customer, supplier or other Person prohibited by clause (i) or (ii) above. (For purposes of this subclause (o), the term “Affiliate” means any person controlling, under common control with, or controlled by the person in question; and the term “control” means the possession, directly or indirectly, of the last remaining member 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.) A natural person who satisfies the foregoing definition other than subparagraph (ii) shall not be disqualified from serving as an Independent Director or Independent Manager of the SPC Party if such individual is an independent director or independent manager provided by a nationally-recognized company that provides professional independent directors or independent managers and that also provides other corporate services in the ordinary course of its business. A natural person who otherwise satisfies the foregoing definition except for being the independent director or independent manager of a “special purpose entity” affiliated with the borrower that does not own a direct or indirect equity interest in the borrower or any co-borrower shall not be disqualified from serving as an Independent Director or Independent Manager of the SPC Party if such individual is at the time of initial appointment, or at any time while serving as a Independent Director or Independent Manager of the SPC Party, an Independent Director or Independent Manager of a “special purpose entity” affiliated with the Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower SPC Party (other than (Aany entity that owns a direct or indirect equity interest in borrower or any co-borrower) upon if such individual is an assignment independent director or independent manager provided by Sole Member a nationally-recognized company that provides professional independent directors or independent managers. For purposes of all of its limited liability company interests in Borrower and the admission of the transfereethis paragraph, if permitted pursuant to the a “special purpose entity” is an entity, whose organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant contain restrictions on its activities substantially similar to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, those set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of BorrowerSPC Party’s organizational documents.
(r) cause or permit the board of directors or managers of any SPC Party or Borrower to take any action which, under the terms of any certificate of incorporation, by‑laws or any voting trust agreement with respect to any common stock or under any organizational document of Borrower or SPC Party, requires a vote of the board of directors or managers of each SPC Party and Borrower unless at the time of such action there shall be at least two (2) members of the board of directors or managers who are each an Independent Director or Independent Manager.
(s) fail to conduct its business so that the assumptions made with respect to Borrower in the Insolvency Opinion shall be true and correct in all respects. In connection with the foregoing, Borrower hereby covenants and agrees that it will comply with or cause the compliance with, (i) all of the facts and assumptions (whether regarding the Borrower or any other Person) set forth in the Insolvency Opinion, (ii) all the representations, warranties and covenants in this Section 3.133.1.24, and (iiiii) all of the organizational documents of Borrowerthe Borrower and any SPC Party.
(st) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party of Borrower independent access to its bank accounts.
(tu) Borrower has paid and shall fail to pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds to the extent it has adequate funds to do so and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not require the members of Borrower to may any additional contributions to Borrower.
(uv) Borrower has compensated and shall fail to compensate each of its consultants and agents from its funds for services provided to it and Borrower has paid and shall pay from its own assets all obligations of any kind incurred.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Single Purpose. Borrower hereby represents has been formed for the sole purpose of owning and warrants to, and covenants with, Lender that since operating the date of its formation and at all times on Collateral Asset. From and after the date hereof and until such time as the Debt Loan shall be paid in full:
(ai) Borrower (i) has been, is, and will be organized solely for the purpose of acquiring, owning, leasing, managing and operating the Property, entering into and performing its obligations under the Loan Documents, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not own any asset or property other than (Ai) the PropertyCollateral Asset, and (Bii) incidental personal property necessary for the ownership, leasing, management ownership or operation of the PropertyCollateral Asset.
(bii) Borrower has not engaged and will not engage in any business or activity other than the acquisition, ownership, leasing, management and operation of the Property Collateral Asset and Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower has not entered and will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except in the ordinary course of business and 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 from an unrelated third party.
(diii) Borrower has not incurred and will not incur any Indebtedness indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation) other than (X) the Loan, (Y) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not exceeding $100,000 at any one time, and (Z) indebtedness incurred in the financing of equipment and other personal property used on the Collateral Asset with annual payments not exceeding $100,000 in the aggregate, provided that any indebtedness incurred pursuant to subclauses (Y) and (Z) shall be (1) not more than sixty (60) days past due and (2) incurred in the ordinary course of business. No indebtedness other than the Debt. No Indebtedness, other than the Debt, Loan may be secured (seniorsubordinate, subordinate pari passu or pari passuotherwise) by the PropertyCollateral Asset.
(eiv) Borrower has not made and will not make any loans or advances to any other Person third party (including any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party), except upon terms and has not acquired conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party and upon terms acceptable to Lender in its sole discretion.
(v) Borrower shall not acquire obligations or securities of its Affiliates.
(fvi) As of the date hereof, Borrower has been, is, is and will endeavor to remain solvent and Borrower has paid its debt and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same became due and will is able to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due.
(gvii) Borrower has done or caused to be done, done and will do and cause to be done, all things necessary to observe its organizational formalities and preserve its separate existence, (i) Borrower has not terminated or failed to comply with and neither party will, nor will not terminate or fail to comply with the provisions of its organizational documentsit permit any constituent party to, (ii) Borrower has not amended, modified or otherwise changed its organizational documents and (iii) unless (A) Lender has consented in writing, Borrower will not amend, modify or - 29 - otherwise change its the articles of formation, operating agreement, trust or other organizational documents except: (i) to cure of Borrower or such constituent party without the prior consent of Lender in any obvious ambiguity or (ii) to correct or supplement any provision manner that violates the covenants set forth in a manner consistent with the intent of this Agreement and the other Loan DocumentsSection 6.14).
(hviii) Borrower has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any other Personconstituent party. Borrower’s assets have not been listed as assets on the financial statement of any other Person; providedExcept for Guarantor, however, that Borrower’s assets may have been included in a consolidated financial statement of its Affiliates; provided that, if applicable, (i) appropriate notation (e.g., footnote) were made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit were not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets were listed on Borrower’s own separate balance sheet. 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 (e.g., footnote) shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B)such assets shall be listed on Borrower’s own separate balance sheet. Borrower shall file its own tax returns (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and was or is not required to file tax returns under applicable law), has not filed and shall not file a consolidated federal income tax return with any other Person, and has paid and shall pay any taxes required to be paid under applicable law. Borrower has maintained and shall maintain its books, records, resolutions and agreements as official records.
(iix) Borrower (i) has been, will be, and at all times has held and will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrowerparty), (ii) has corrected and shall correct any known misunderstanding regarding its status as a separate entity, (iii) has conducted and shall conduct business solely in its own name, (iv) has not identified and shall not identify itself or any of its Affiliates as a division or department or part of the other and (v) has maintained and utilized and shall maintain and utilize a separate telephone number and separate stationery, invoices and checks bearing its own name.
(jx) Borrower has maintained and will endeavor to maintain maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(kxi) Neither Borrower Borrower, nor any constituent party of Borrower has sought and, to the fullest extent permitted by applicable law, neither Borrower nor any constituent party of Borrower will seek or effect the liquidation, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of Borrower, any sale or other transfer or otherwise dispose of all or substantially all of its assets or any sale or other transfer outside the ordinary course of businessassets.
(lxii) Borrower has not commingled and will not commingle its funds or and other assets of Borrower with those of any Affiliate or constituent party or any other PersonPerson (provided, and has held however, property manager of the Collateral Asset may do so), and will hold all of its assets solely in its own name, other than as permitted under the Loan Documents.
(mxiii) 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 Affiliate or constituent party or any other Person.
(nxiv) Except for the Loan, Borrower did will not assume, guarantee or become obligated for the debts or obligations of any other Person and did not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person. Borrower will not assume, guarantee or become obligated for the debts or obligations of any other Person and does not and will not hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall provide that Borrower will not (and Borrower agrees that it will not), (i) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or consent to the appointment of a receiver, liquidator or any similar official for Borrower or a substantial portion of its assets or properties, (iv) make an assignment for the benefit of creditors, (v) admit in writing Borrower’s inability to pay its debts generally as they become due, or (vi) take any action in furtherance of any of the foregoing.
(p) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding, except as expressly permitted pursuant to the terms of the Loan Documents, (i) Guarantor, as sole member (the “Sole Member”) may not resign, and (ii) no additional member shall be admitted to Borrower.
(q) The organizational documents of Borrower shall provide that, as long as any portion of the Debt remains outstanding: (ixv) Borrower shall be dissolved, and its affairs shall be wound up, only upon the first to occur of the following: (A) the termination of the legal existence of the last remaining member of Borrower or the occurrence of any other event which terminates the continued membership of the last remaining member of Borrower in Borrower unless the business of Borrower is continued in a manner permitted by its operating agreement or the Delaware Limited Liability Company Act (the “Act”), or (B) the entry of a decree of judicial dissolution under Section 18-802 of the Act; (ii) upon the occurrence of any event that causes the last remaining member of Borrower to cease to be a member of Borrower or that causes Sole Member to cease to be a member of Borrower (other than (A) upon an assignment by Sole Member of all of its limited liability company interests in Borrower and the admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (B) the resignation of Sole Member and the admission of an additional member of Borrower, if permitted pursuant to the organizational documents of Borrower and the Loan Documents), to the fullest extent permitted by applicable law, the personal representative of such last remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in Borrower, agree in writing (1) to continue the existence of Borrower, and (2) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of Borrower, effective as of the occurrence of the event that terminated the continued membership of such member in Borrower; (iii) the bankruptcy of Sole Member shall not cause such Sole Member to cease to be a member of Borrower and upon the occurrence of such event, the business of Borrower shall continue without dissolution; (iv) in the event of the dissolution of Borrower, Borrower shall conduct only such activities as are necessary to wind up its affairs (including the sale of its assets and properties in an orderly manner), and its assets and properties shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (v) to the fullest extent permitted by applicable law, Sole Member shall irrevocably waive any right or power that they might have to cause Borrower or any of its assets or properties to be partitioned, to cause the appointment of a receiver for all or any portion of the assets or properties of Borrower, to compel any sale of all or any portion of the assets or properties of Borrower pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of Borrower.
(r) Borrower covenants and agrees that it will comply with or cause the compliance with, (i) all of the representations, warranties and covenants in this Section 3.13, and (ii) all of the organizational documents of Borrower.
(s) Borrower has not permitted and will not permit any Affiliate (other than Sole Member pursuant to the terms of the organizational documents of Borrower) or constituent party independent access to its bank accounts.
(txvi) Borrower has paid and shall will pay its own liabilities and expenses, including the salaries of its own employees (if any) from its own funds, funds and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations.
(uxvii) Borrower has compensated and shall will compensate each of its consultants and agents from its funds generated by the Collateral Asset or from other sources for services provided to it and Borrower has paid and shall pay from its assets all obligations of any kind incurredthe Collateral Asset.
(v) Borrower has not (i) filed a bankruptcy, insolvency or reorganization petition or otherwise instituted insolvency proceedings or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally, (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (iii) made any assignment for the benefit of Borrower’s creditors or (iv) admitted in writing Borrower’s inability to pay its debts generally as they become due. Borrower will not (A) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Borrower or for all or any portion of Borrower’s assets or properties, (C) make any assignment for the benefit of Borrower’s creditors or (D) admit in writing Borrower’s inability to pay its debts generally as they become due.
(w) Borrower has maintained and will maintain an arm’s-length relationship with its Affiliates.
(x) Borrower has allocated and will allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, without limitation, shared office space.
(y) Except to Lender in connection with the Loan, Borrower has not pledged and will not pledge its assets or properties for the benefit of, or to secure the obligations of, any other Person.
(z) Borrower has had, has and will have no obligation to indemnify its directors, managers, officers, or members as the case may be, or, if applicable, has such an obligation that is fully subordinated to the Debt and that will not constitute a claim against Borrower if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.
(aa) The organizational documents of Borrower shall provide that Borrower will not: (i) dissolve, merge, liquidate, consolidate; (ii) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (iii) engage in any other business activity, or amend its organizational documents with respect to any of the matters set forth in this Section 3.13, without the prior consent of Lender in its sole discretion.
(bb) Borrower will consider the interests of Borrower’s creditors in connection with all actions.
(cc) Borrower has not had and, except in connection with the Loan, does not have and will not have any of its obligations guaranteed by any Affiliate.
(dd) Borrower has not owned or acquired and will not own or acquire any stock or securities of any Person.
(ee) Borrower has not bought or held and will not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities).
(ff) Borrower has not formed, acquired or held and will not form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other entity), and Borrower has not owned and will not own any equity interest in any other entity.
Appears in 1 contract
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)