Special Purpose Entity Requirements. Except as otherwise permitted by this Agreement, the Borrower shall not (i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business other than as set forth in the Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; (v) incur any Indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness permitted under the Transaction Documents; (vi) make any loans or advances to any third party (including any Affiliate or constituent party), or acquire obligations or securities of its Affiliates other than as permitted under the Transaction Documents; (vii) amend, modify or otherwise change the certificate of formation, the Borrower’s organizational documents or other organizational documents of the Borrower without the prior consent of Administrative Agent or any applicable Lender in any manner that (A) violates the separate existence covenants set forth the Borrower’s organizational documents, or (B) amends, modifies or otherwise changes any provision of the Borrower’s organizational documents that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance with the Transaction Documents or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer from time to time; (xiii) pledge its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted in accordance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction Documents.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Onex Direct Lending BDC Fund)
Special Purpose Entity Requirements. Except All of the provisions of this Section 8.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) Borrower has not and, until repayment in full of the Borrower Indebtedness, shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation, maintenance, demolition, alteration and development of and sale of condominium units in accordance with the terms of this Agreement with respect to the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned, terminate the provisions of Borrower’s formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the this Section 8.12 or that would otherwise adversely affect Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; special purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness the Indebtedness, except as permitted under Section 10.1, provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Transaction Documents; Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viviii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties or otherwise approved by Lender;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan);
(xiii) make any loans or advances to any third party (party, including any Affiliate of its shareholders, partners, members, Principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, Principal or securities Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its Affiliates manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other than as permitted under the Transaction Documents; (vii) amend, modify Person or otherwise change the certificate of formation, the Borrower’s organizational documents or other organizational documents of the Borrower without the prior consent of Administrative Agent or any applicable Lender to conduct its business solely in any manner that its own name in order not: (A) violates to mislead others as to the separate existence covenants set forth the Borrower’s organizational documents, entity with which such other party is transacting business; or (B) amends, modifies or otherwise changes any provision of the Borrower’s organizational documents to suggest that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) Borrower is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated responsible for the debts of any other third party (including any of its shareholders, partners, members, principals or Affiliates, or any shareholder, partner, member, principal or Affiliate thereof);
(xvi) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations (which may be zero employees);
(xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and hold itself out character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Property at such time to do so and Borrower’s constituent owners shall not be responsible for required to fund or have its credit available advance any additional capital to satisfy this obligation;
(xviii) seek dissolution or winding up in whole, or in part;
(xix) file a voluntary petition or otherwise initiate proceedings to have Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower or any Principal, or make any general assignment for the benefit of creditors of Borrower or any Principal, or admit in writing the inability of Borrower or any Principal to pay its debts generally as they become due or obligations declare or effect a moratorium on Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person; .
(xiib) permit If Borrower is a limited partnership, then any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance general partner of Borrower must also be a special purpose entity and comply with the Transaction Documents or provisions of this Section 8.12.
(Bc) Affiliates in connection with administrative, back-office operations Borrower and related services provided any Person required to be a special purpose entity pursuant to the terms of this Section 8.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8.12 or that would otherwise adversely affect Borrower’s special purpose entity status without the prior written consent of Lender, Transferor which consent shall not be unreasonably withheld, delayed or Servicer conditioned. Promptly after Lender’s written request from time to time; (xiii) pledge its assets , but not more frequently than once in any calendar year, Borrower shall deliver to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate Lender evidence reasonably satisfactory to Lender that Borrower and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted required to be a special purpose entity pursuant to the terms of this Section 8.12 are in accordance compliance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction DocumentsSection 8.12.
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)
Special Purpose Entity Requirements. Except as otherwise permitted by this Agreement, the (a) Borrower has not and shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as set forth may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the Borrower’s organizational documents and under the Transaction Documents; prior consent of Lender;
(iv) enter into any contract or agreement with any Affiliatefail to preserve its existence as an entity duly organized, any constituent party validly existing and in good standing (if applicable) under the laws of the Borrower jurisdiction of its organization or any Affiliate formation, or without the prior consent of any constituent partyLender, except upon terms and conditions that are commercially reasonableamend, fair and substantially similar modify, terminate or fail to those that would be available on an armcomply with the provisions of Borrower’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; formation documents;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior consent of Lender;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness permitted the Indebtedness, except reasonable and customary trade payables and operational debt incurred with trade creditors in the ordinary course of its business of owning and operating the Mortgaged Property in such amounts as are normal and reasonable under the Transaction Documents; circumstances that will be satisfied within 60 days of incurrence, provided that such debt is not evidenced by a note and is paid when due;
(viviii) allow any Person to pay its debts and liabilities (except a guarantor or indemnitor of the Loan) or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and affiliates, or any shareholder, partner, member, principal or affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xii) share any common logo with or hold itself out as or be considered as a department or division of any of its shareholders, partners, members, Principals or affiliates, or any shareholder, partner, member, principal or affiliate thereof, or any other Person or allow any Person to identify Borrower as a department or division of that Person;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan);
(xiv) make any loans or advances to any third party, including any of its shareholders, partners, members, Principals or affiliates, or any shareholder, partner, member, principal or affiliate thereof;
(xv) fail to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not: (A) to mislead others as to the entity with which such other party is transacting business; or (B) to suggest that Borrower is responsible for the debts of any third party (including any Affiliate of its shareholders, partners, members, Principals or constituent party)affiliates, or acquire obligations any shareholder, partner, member, principal or securities affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including any guarantor or indemnitor of the Loan) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its Affiliates own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail 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;
(xx) seek dissolution or winding up in whole, or in part;
(xxi) file a voluntary petition or otherwise initiate proceedings to have Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower or any Principal, or make any general assignment for the benefit of creditors of Borrower or any Principal, or admit in writing the inability of Borrower or Principal to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any Principal debt or take any action in furtherance of any such action; or
(xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person.
(b) IFC, Inc. must also be a special purpose entity and comply with the provisions of this Section 2.26. Dandorr, LLC and Rebnec Ten, Inc. shall own no assets other than as permitted under the Transaction Documents; (vii) amend, modify or otherwise change the certificate of formation, for its partnership interests in the Borrower’s organizational documents or other organizational documents . Furthermore, at any time during the term of the Loan if Borrower is a limited partnership, then any general partner of Borrower must also be a special purpose entity and comply with the provisions of this Section 2.26. Moreover, at any time during the term of the Loan if Borrower is a limited liability company, then any managing member of Borrower must also be a special purpose entity and comply with the provisions of this Section 2.26.
(c) Borrower and any other Person required to be a special purpose entity pursuant to the terms of this Section 2.26 shall not amend or modify any of their respective formation documents without the prior consent of Administrative Agent or any applicable Lender in any manner that (A) violates the separate existence covenants set forth the Borrower’s organizational documentsLender, or (B) amends, modifies or otherwise changes any provision of the Borrower’s organizational documents that (x) by its terms canwhich consent shall not be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable unreasonably withheld. Promptly after Lender’s consent, or (z) is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance with the Transaction Documents or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer written request from time to time; (xiii) pledge its assets , but not more frequently than once in any calendar year, Borrower shall deliver to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate Lender evidence reasonably satisfactory to Lender that Borrower and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted required to be a special purpose entity pursuant to the terms of this Section 2.26 are in accordance compliance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction DocumentsSection.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Special Purpose Entity Requirements. Except All of the provisions of this Section 8.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) Borrower has not and, until repayment in full of the Borrower Indebtedness, shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation, maintenance, demolition, alteration and development of and sale of condominium units in accordance with the terms of this Agreement with respect to the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned, terminate the provisions of Borrower’s formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the this Section 8.12 or that would otherwise adversely affect Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; special purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Indebtedness and the Refinanced Loans (which are no longer outstanding), except as permitted under Section 10.1, provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Transaction Documents; Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viviii) except for a payment of the Indebtedness and the Refinanced Loans by a guarantor or indemnitor thereof, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties or otherwise approved by Lender;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan and the Refinanced Loans);
(xiii) make any loans or advances to any third party, including any of its shareholders, partners, members, Principals or Affiliates, or any shareholder, partner, member, Principal or Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not: (A) to mislead others as to the entity with which such other party is transacting business; or (B) to suggest that Borrower is responsible for the debts of any third party (including any of its shareholders, partners, members, principals or Affiliates, or any shareholder, partner, member, principal or Affiliate thereof);
(xvi) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations (which may be zero employees);
(xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Property at such time to do so and Borrower’s constituent partyowners shall not be required to fund or advance any additional capital to satisfy this obligation;
(xviii) seek dissolution or winding up in whole, or in part;
(xix) file a voluntary petition or otherwise initiate proceedings to have Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower or any Principal, or make any general assignment for the benefit of creditors of Borrower or any Principal, or admit in writing the inability of Borrower or any Principal to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person.
(b) If Borrower is a limited partnership, then any general partner of Borrower must also be a special purpose entity and comply with the provisions of this Section 8.12.
(c) Borrower and any Person required to be a special purpose entity pursuant to the terms of this Section 8.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8.12 or that would otherwise adversely affect Borrower’s special purpose entity status without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned. Promptly after Lender’s written request from time to time, but not more frequently than once in any calendar year, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that Borrower and any other Person required to be a special purpose entity pursuant to the terms of this Section 8.12 are in compliance with the provisions of this Section 8.12.
(d) The organizational documents of Borrower shall provide that the business and affairs of Borrower shall be (A) managed by or under the direction of a board of one or more directors designated by the sole member of Borrower or (B) a committee of managers designated by the sole member of Borrower (a “Committee”) or (C) by the sole member of Borrower, and at all times there shall be at least one (1) duly appointed Independent Director or Independent Manager. In addition, the organizational documents of Borrower shall provide that no Independent Director or Independent Manager (as applicable) of Borrower may be removed or replaced without Cause and unless Borrower provides Lender with not less than three (3) Business Days’ prior written notice of (a) any proposed removal of an Independent Director or Independent Manager (as applicable), together with a statement as to the reasons for such removal, and (b) the identity of the proposed replacement Independent Director or acquire obligations Independent Manager, as applicable, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Director or securities Independent Manager (as applicable).
(e) The organizational documents of its Affiliates other than Borrower shall also provide an express acknowledgment that Lender is an intended third-party beneficiary of the “special purpose” provisions of such organizational documents.
(f) The organizational documents of Borrower shall provide that the board of directors, the Committee or the sole member of Borrower (as permitted applicable) of Borrower shall not take any action which, under the Transaction Documents; (vii) amend, modify or otherwise change the terms of any certificate of formation, the Borrower’s organizational documents limited liability company operating agreement or other organizational documents any voting trust agreement, requires an unanimous vote of the board of directors (or the Committee as applicable) of Borrower without unless at the prior consent time of Administrative Agent or any applicable Lender in any manner that such action there shall be (A) violates at least one (1) member of the separate existence covenants set forth board of directors (or the Borrower’s organizational documentsCommittee as applicable) who is and Independent Director or Independent Manager, as applicable (and such Independent Director or Independent Manager, as applicable, have participated in such vote) or (B) amendsif there is no board of directors or Committee, modifies or otherwise changes any provision of the Borrower’s then such Independent Manager shall 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 written consent of its board of directors, its Committee or the sole member of Borrower (xas applicable), including, or together with, the Independent Director or Independent Manager (as applicable) by its terms cannot be modified at (i) file or consent to the filing of any time when an Advance outstandingpetition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, (yii) by its terms cannot be modified without Administrative Agent seek or consent to the appointment of a receiver, liquidator or any applicable Lender’s consentsimilar official of Borrower or a substantial part of its business, (iii) take any action that would reasonably be expected to cause such entity to become insolvent, (iv) make an assignment for the benefit of creditors, (v) admit in writing its inability to pay debts generally as they become due, (vi) declare or effectuate a moratorium on the payment of any obligations, or (zvii) is otherwise prohibited from being amended or modified pursuant to this Agreement take any action in furtherance of the foregoing. Borrower shall not take any of the foregoing actions without the unanimous written consent of its board of directors, its Committee or the sole member of Borrower, as applicable, including (or together with) all Independent Director or Independent Manager, as applicable. In addition, the organizational documents of Borrower shall provide that, when voting with respect to any matters set forth in the immediately preceding sentence of this clause (q), the Independent Director or Independent Manager (as applicable) shall consider only the interests of Borrower, including its creditors. Without limiting the generality of the foregoing, such documents shall expressly provide that, to the greatest extent permitted by law, except for duties to Borrower (including duties to the members of Borrower solely to the extent of their respective economic interest in Borrower and to Borrower’s creditors as set forth in the immediately preceding sentence), such Independent Director or Independent Manager (as applicable) shall not owe any fiduciary duties to, and shall not consider, in acting or otherwise voting on any matter for which their approval is required, the interests of (i) the members of Borrower, (ii) other Transaction Documents; Affiliates of Borrower, or (viiiiii) permit its assets to be listed as assets on the financial statement any group of any other PersonAffiliates of which Borrower is a part; provided, however, that the Borrower’s assets may be included in a consolidated financial statement foregoing shall not eliminate the implied contractual covenant of its Affiliates good faith and fair dealing.
(including Onex Direct Lending BDC Fundg) provided that (A) appropriate notation The organizational documents of Borrower shall be made on such consolidated financial statements to indicate the separateness provide that, as long as any portion of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that Obligations remains outstanding, upon the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those occurrence of any Affiliate or constituent party or any event that causes the sole member of Borrower to cease to be a member of Borrower (other Person, and hold than (i) upon an assignment by such sole member of all of its assets in its own name; (xi) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance with the Transaction Documents or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer from time to time; (xiii) pledge its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted in accordance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement Borrower and the other Transaction admission of the transferee, if permitted pursuant to the organizational documents of Borrower and the Loan Documents, or (ii) the resignation of such 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 or Independent Manager (as applicable) of Borrower shall, without any action of any Person and simultaneously with such 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 or division. The organizational documents of Borrower shall further provide that for so long as any portion of the Indebtedness 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, and (ii) such successor Special Member has also accepted its appointment as an Independent Director or Independent Manager (as applicable).
Appears in 1 contract
Sources: Master Loan Agreement (Trinity Place Holdings Inc.)
Special Purpose Entity Requirements. Except All of the provisions of this Section 8.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) None of Borrower, Mortgage Pledgor or Mortgage Borrower has and, until repayment in full of the Borrower shall not Indebtedness, shall:
(i) without (A) in the prior unanimous written consent case of Onex Direct Lending BDC Fund and the Independent ManagerBorrower, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the ownership, holding, sale, transfer, exchange or management of the Collateral and being the sole member of Mortgage Pledgor, entering into this Agreement and the Loan Documents, and activities incidental thereto; (B) in the case of Mortgage Pledgor, engage in any business or activity other than the ownership of Mortgage Borrower and activities incidental thereto; and (C) in the case of Mortgage Borrower, engage in any business or activity other than the acquisition, ownership, operation, maintenance, demolition, alteration and development of and sale of condominium units in accordance with the terms of this Agreement with respect to the Mortgaged Property, and activities incidental thereto;
(ii) (A) in the case of Borrower, acquire or own any material asset other than the Collateral; (B) in the case of Mortgage Pledgor, acquire or own any material asset other than 100% of the direct equity interests in Mortgage Borrower; and (C) in the case of Mortgage Borrower, acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Administrative Agent;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned, terminate the provisions of its respective formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract this Section 8.12 or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; otherwise adversely affect its special purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower, Mortgage Pledgor or Mortgage Borrower permitted hereunder and properly accounted for;
(A) in the case of Borrower, incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness the Indebtedness, except as permitted under the Transaction DocumentsSection 10.1; (viB) in the case of Mortgage Pledgor, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation); and (C) in the case of Mortgage Borrower, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Indebtedness (as defined in the Master Loan Agreement), except as permitted under Section 10.1 of the Mortgage Loan Agreement, provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Mortgaged Property at such time to do so and Mortgage Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan or the Mortgage Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Mortgage Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties or otherwise approved by Administrative Agent;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower, Mortgage Pledgor or Mortgage Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower, Mortgage Pledgor or Mortgage Borrower (except for a guarantor or indemnitor of the Loan or the Mortgage Loan);
(xiii) make any loans or advances to any third party, including any of its shareholders, partners, members, Principals or Affiliates, or any shareholder, partner, member, Principal or Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not: (A) to mislead others as to the entity with which such other party is transacting business; or (B) to suggest that Borrower, Mortgage Pledgor or Mortgage Borrower is responsible for the debts of any third party (including any Affiliate of its shareholders, partners, members, principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, principal or securities Affiliate thereof);
(xvi) allow any Person to pay the salaries of its Affiliates other than as permitted under own employees or fail to maintain a sufficient number of employees for its contemplated business operations (which may be zero employees);
(xvii) fail to maintain adequate capital for the Transaction Documents; normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided that with respect to Mortgage Borrower there is sufficient cash flow from the Mortgaged Property at such time to do so and Mortgage Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy this obligation;
(viixviii) amendseek dissolution or winding up in whole, modify or in part, or any Division;
(xix) file a voluntary petition or otherwise change initiate proceedings to have Borrower, Mortgage Pledgor or Mortgage Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the certificate institution of formationbankruptcy or insolvency proceedings against Borrower, the Mortgage Pledgor or Mortgage Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower’s organizational documents , Mortgage Pledgor or Mortgage Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other organizational documents relief for debtors with respect to Borrower, Mortgage Pledgor or Mortgage Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower, Mortgage Pledgor or Mortgage Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower, Mortgage Pledgor or Mortgage Borrower without the prior consent of Administrative Agent or any applicable Lender Principal, or make any general assignment for the benefit of creditors of Borrower, Mortgage Pledgor or Mortgage Borrower or any Principal, or admit in writing the inability of Borrower, Mortgage Pledgor or Mortgage Borrower or any Principal to pay its debts generally as they become due or declare or effect a moratorium on Borrower, Mortgage Pledgor or Mortgage Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person.
(b) If any of Borrower, Mortgage Pledgor or Mortgage Borrower is a limited partnership, then any general partner of Borrower, Mortgage Pledgor or Mortgage Borrower must also be a special purpose entity and comply with the provisions of this Section 8.12.
(c) Borrower, Mortgage Pledgor, Mortgage Borrower and any Person required to be a special purpose entity pursuant to the terms of this Section 8.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8.12 or that would otherwise adversely affect Borrower’s, Mortgage Pledgor’s or Mortgage Borrower’s special purpose entity status without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned. Promptly after Administrative Agent’s written request from time to time, but not more frequently than once in any calendar year, Borrower shall deliver to Administrative Agent evidence reasonably satisfactory to Administrative Agent that Borrower, Mortgage Pledgor, Mortgage Borrower and any other Person required to be a special purpose entity pursuant to the terms of this Section 8.12 are in compliance with the provisions of this Section 8.12.
(d) Borrower shall at all times be limited liability company formed under the laws of the State of Delaware that will have an operating agreement which provides, that as long as any portion of the Indebtedness remains outstanding: (i) Borrower shall have at least one (1) Independent Manager, and Borrower shall not institute proceedings to have the company be adjudicated bankrupt or consent to the institution of bankruptcy or insolvency proceedings against the company or file a voluntary bankruptcy petition with respect to the company, to file or consent to the filing of any petition to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute or other laws relating to the relief from debts or the protection of debtors generally, with respect to the company, or to seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the company or all or a portion of its property, or to make any assignment for the benefit of creditors of Borrower, or to admit in writing the company’s inability to pay its debts generally as they become due, or to take action in furtherance of any such actions, or, to the fullest extent permitted by law, dissolve or liquidate the company (each such action, a “Bankruptcy Action”) unless, (a) such Bankruptcy Action is approved by the prior unanimous written consent of the member of Borrower and each Independent Manager and (b) at the time of such action there is at least one (1) Independent Manager; each Independent Manager shall be a “manager” of Borrower within the meaning of Section 18-101(10) of the Delaware Limited Liability Company Act (the “Act”); provided, however, the Independent Manager shall only have the rights and duties expressly set forth in Borrower’s limited liability company agreement; (ii) upon the occurrence of any event that causes the last member of Borrower to cease to be a member of such limited liability company (other than upon an assignment by such member of all of its limited liability company interest in such limited liability company and the admission of the transferee in accordance with Borrower’s limited liability company agreement), (1) the person(s) acting as Independent Manager of Borrower shall, without any action of any Person and simultaneously with such member ceasing to be a member of such limited liability company, automatically be admitted as the “Special Member” and shall preserve and continue the existence of such limited liability company without dissolution, and (2) without limiting the provisions of clause (1), 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 the sole member to cease to be a member of Borrower (other than upon continuation of Borrower without dissolution upon an assignment by the member of all of its limited liability company interest in Borrower and the admission of the transferee in accordance with Borrower’s limited liability company agreement), to the fullest extent permitted by law, the personal representative of such 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 such limited liability company, agree in writing to continue Borrower without dissolution and to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company, effective as of the occurrence of the event that terminated the continued membership of such member in such limited liability company; (iii) no Special Member may voluntarily resign or transfer its rights as Special Member unless (A) violates the separate existence covenants set forth the Borrower’s organizational documentsa successor Special Member has been admitted to such limited liability company as a Special Member, or and (B) amends, modifies or otherwise changes any provision of the such successor Special Member has also accepted its appointment as an Independent Manager and executed a counterpart to Borrower’s organizational documents that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Personlimited liability company agreement; provided, however, that the Borrower’s assets may Special Member shall automatically cease to be included in a consolidated financial statement member of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation Borrower upon the admission to Borrower of a substitute member; the Special Member shall be made on such consolidated financial statements a member of Borrower that has no interest in the profits, losses and capital of Borrower and has no right to indicate the separateness receive any distributions of limited liability company assets; pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the shall not receive a limited liability company interest in Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ixiv) seek a Special Member, in its capacity as Special Member, may not bind Borrower; (v) except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or effect otherwise consent to any action by, or matter relating to, Borrower, including the liquidationCondominium Association, division, dissolution, winding up, liquidationmerger, consolidation or merger, in whole or in part, conversion of the Borrower; (xvi) commingle in order to implement the funds admission to Borrower of each Special Member, each Person acting as an Independent Manager shall execute a counterpart to Borrower’s limited liability company agreement; (vii) prior to its admission to Borrower as Special Member, each Person acting as an Independent Manager shall not be a member of Borrower; (viii) such limited liability company shall be dissolved, and other assets its affairs shall be wound up only upon the first to occur of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; following (xibut subject to clause (ii) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by above): (A) the Transferor termination of the legal existence of the last remaining member of such limited liability company or Servicer the occurrence of any other event which terminates the continued membership of the last remaining member of such limited liability company in accordance with such limited liability company unless the Transaction Documents business of such limited liability company is continued in a manner permitted by its limited liability company agreement or the Act, or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer from time to time; (xiii) pledge its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted in accordance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction Documents.entry o
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Trinity Place Holdings Inc.)
Special Purpose Entity Requirements. Except All of the provisions of this Section 8.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) None of Borrower, Additional Pledgor or Mortgage Borrower has and, until repayment in full of the Borrower shall not Indebtedness, shall:
(i) without (A) in the prior unanimous written consent case of Onex Direct Lending BDC Fund and the Independent ManagerBorrower, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the ownership, holding, sale, transfer, exchange or management of the Collateral and being the sole member of Additional Pledgor, entering into this Agreement and the Loan Documents, and activities incidental thereto; (B) in the case of Additional Pledgor, engage in any business or activity other than the ownership of Mortgage Borrower and activities incidental thereto and entering into the applicable Pledge Agreement; and (C) in the case of Mortgage Borrower, engage in any business or activity other than the acquisition, ownership, operation, maintenance, demolition, alteration and development of and sale of condominium units in accordance with the terms of this Agreement with respect to the Mortgaged Property, and activities incidental thereto;
(ii) (A) in the case of Borrower, acquire or own any material asset other than the Collateral; (B) in the case of Additional Pledgor, acquire or own any material asset other than 100% of the direct equity interests in Mortgage Borrower; and (C) in the case of Mortgage Borrower, acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Administrative Agent;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned, terminate the provisions of its respective formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract this Section 8.12 or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; otherwise adversely affect its special purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower, Additional Pledgor or Mortgage Borrower permitted hereunder and properly accounted for;
(A) in the case of Borrower, incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness the Indebtedness, except as permitted under the Transaction DocumentsSection 10.1; (viB) in the case of Additional Pledgor, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation); and (C) in the case of Mortgage Borrower, incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Indebtedness (as defined in the Master Loan Agreement), except as permitted under Section 10.1 of the Mortgage Loan Agreement, provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Mortgaged Property at such time to do so and Mortgage Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan or the Mortgage Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Mortgage Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties or otherwise approved by Administrative Agent;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower, Additional Pledgor or Mortgage Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower, Additional Pledgor or Mortgage Borrower (except for a guarantor or indemnitor of the Loan or the Mortgage Loan);
(xiii) make any loans or advances to any third party, including any of its shareholders, partners, members, Principals or Affiliates, or any shareholder, partner, member, Principal or Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other Person or to conduct its business solely in its own name in order not: (A) to mislead others as to the entity with which such other party is transacting business; or (B) to suggest that Borrower, Additional Pledgor or Mortgage Borrower is responsible for the debts of any third party (including any Affiliate of its shareholders, partners, members, principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, principal or securities Affiliate thereof);
(xvi) allow any Person to pay the salaries of its Affiliates other than as permitted under own employees or fail to maintain a sufficient number of employees for its contemplated business operations (which may be zero employees);
(xvii) fail to maintain adequate capital for the Transaction Documents; normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided that with respect to Mortgage Borrower there is sufficient cash flow from the Mortgaged Property at such time to do so and Mortgage Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy this obligation;
(viixviii) amendseek dissolution or winding up in whole, modify or in part, or any Division;
(xix) file a voluntary petition or otherwise change initiate proceedings to have Borrower, Additional Pledgor or Mortgage Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the certificate institution of formationbankruptcy or insolvency proceedings against Borrower, the Additional Pledgor or Mortgage Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower’s organizational documents , Additional Pledgor or Mortgage Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other organizational documents relief for debtors with respect to Borrower, Additional Pledgor or Mortgage Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower, Additional Pledgor or Mortgage Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower, Additional Pledgor or Mortgage Borrower without the prior consent of Administrative Agent or any applicable Lender Principal, or make any general assignment for the benefit of creditors of Borrower, Additional Pledgor or Mortgage Borrower or any Principal, or admit in writing the inability of Borrower, Additional Pledgor or Mortgage Borrower or any Principal to pay its debts generally as they become due or declare or effect a moratorium on Borrower, Additional Pledgor or Mortgage Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person.
(b) If any of Borrower, Additional Pledgor or Mortgage Borrower is a limited partnership, then any general partner of Borrower, Additional Pledgor or Mortgage Borrower must also be a special purpose entity and comply with the provisions of this Section 8.12.
(c) Borrower, Additional Pledgor, Mortgage Borrower and any Person required to be a special purpose entity pursuant to the terms of this Section 8.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8.12 or that would otherwise adversely affect Borrower’s, Additional Pledgor’s or Mortgage Borrower’s special purpose entity status without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld, delayed or conditioned. Promptly after Administrative Agent’s written request from time to time, but not more frequently than once in any calendar year, Borrower shall deliver to Administrative Agent evidence reasonably satisfactory to Administrative Agent that Borrower, Additional Pledgor, Mortgage Borrower and any other Person required to be a special purpose entity pursuant to the terms of this Section 8.12 are in compliance with the provisions of this Section 8.12.
(d) Each of Borrower and Additional Pledgor (each, a “SPE Party”) shall at all times be a limited liability company formed under the laws of the State of Delaware that will have an operating agreement which provides, that as long as any portion of the Indebtedness remains outstanding: (i) SPE Party shall have at least one (1) Independent Manager, and SPE Party shall not institute proceedings to have the company be adjudicated bankrupt or consent to the institution of bankruptcy or insolvency proceedings against the company or file a voluntary bankruptcy petition with respect to the company, to file or consent to the filing of any petition to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute or other laws relating to the relief from debts or the protection of debtors generally, with respect to the company, or to seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the company or all or a portion of its property, or to make any assignment for the benefit of creditors of SPE Party, or to admit in writing the company’s inability to pay its debts generally as they become due, or to take action in furtherance of any such actions, or, to the fullest extent permitted by law, dissolve or liquidate the company (each such action, a “Bankruptcy Action”) unless, (a) such Bankruptcy Action is approved by the prior unanimous written consent of the member of SPE Party and each Independent Manager and (b) at the time of such action there is at least one (1) Independent Manager; each Independent Manager shall be a “manager” of SPE Party within the meaning of Section 18-101(10) of the Delaware Limited Liability Company Act (the “Act”); provided, however, the Independent Manager shall only have the rights and duties expressly set forth in SPE Party’s limited liability company agreement; (ii) upon the occurrence of any event that causes the last member of SPE Party to cease to be a member of such limited liability company (other than upon an assignment by such member of all of its limited liability company interest in such limited liability company and the admission of the transferee in accordance with SPE Party’s limited liability company agreement), (1) the person(s) acting as Independent Manager of SPE Party shall, without any action of any Person and simultaneously with such member ceasing to be a member of such limited liability company, automatically be admitted as the “Special Member” and shall preserve and continue the existence of such limited liability company without dissolution, and (2) without limiting the provisions of clause (1), upon the occurrence of any event that causes the last remaining member of SPE Party to cease to be a member of SPE Party or that causes the sole member to cease to be a member of SPE Party (other than upon continuation of SPE Party without dissolution upon an assignment by the member of all of its limited liability company interest in SPE Party and the admission of the transferee in accordance with SPE Party’s limited liability company agreement), to the fullest extent permitted by law, the personal representative of such 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 such limited liability company, agree in writing to continue SPE Party without dissolution and to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company, effective as of the occurrence of the event that terminated the continued membership of such member in such limited liability company; (iii) no Special Member may voluntarily resign or transfer its rights as Special Member unless (A) violates the separate existence covenants set forth the Borrower’s organizational documentsa successor Special Member has been admitted to such limited liability company as a Special Member, or and (B) amends, modifies or otherwise changes any provision of the Borrowersuch successor Special Member has also accepted its appointment as an Independent Manager and executed a counterpart to SPE Party’s organizational documents that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Personlimited liability company agreement; provided, however, that the Borrower’s assets may Special Member shall automatically cease to be included in a consolidated financial statement member of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation SPE Party upon the admission to SPE Party of a substitute member; the Special Member shall be made on such consolidated financial statements a member of SPE Party that has no interest in the profits, losses and capital of SPE Party and has no right to indicate the separateness receive any distributions of limited liability company assets; pursuant to Section 18-301 of the Borrower Act, a Special Member shall not be required to make any capital contributions to SPE Party and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are shall not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheetreceive a limited liability company interest in SPE Party; (ixiv) seek a Special Member, in its capacity as Special Member, may not bind SPE Party; (v) except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or effect otherwise consent to any action by, or matter relating to, SPE Party, including the liquidationCondominium Association, division, dissolution, winding up, liquidationmerger, consolidation or mergerconversion of SPE Party; (vi) in order to implement the admission to SPE Party of each Special Member, in whole or in parteach Person acting as an Independent Manager shall execute a counterpart to SPE Party’s limited liability company agreement; (vii) prior to its admission to SPE Party as Special Member, each Person acting as an Independent Manager shall not be a member of SPE Party; (viii) such limited liability company shall be dissolved, and its affairs shall be wound up only upon the first to occur of the Borrower; following (xbut subject to clause (ii) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by above): (A) the Transferor or Servicer in accordance with the Transaction Documents or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer from time to time; (xiii) pledge its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts termination of the Borrower, or pay the debts legal existence of the Borrower; (xv) buy or hold evidence last remaining member of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted in accordance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, such limited liability company or other) or own any equity interest in the occurrence of any other entity, other than Permitted Investments made event which terminates the continued membership of the last remaining member of such limited liability company in accordance with the terms and provisions of this Agreement and the other Transaction Documents.such limited liability company u
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Trinity Place Holdings Inc.)
Special Purpose Entity Requirements. Except All of the provisions of this Section 8.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) Borrower has not and, until repayment in full of the Borrower Indebtedness, shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation, maintenance, demolition, alteration and development of and sale of condominium units in accordance with the terms of this Agreement with respect to the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned, terminate the provisions of Borrower’s formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the this Section 8.12 or that would otherwise adversely affect Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; special purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Indebtedness and the Refinanced Loans (which are no longer outstanding), except as permitted under Section 10.1, provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Transaction Documents; Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viviii) except for a payment of the Indebtedness and the Refinanced Loans by a guarantor or indemnitor thereof, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties or otherwise approved by Lender;
(xi) fail to correct any known misunderstandings regarding the separate identity of ▇▇▇▇▇▇▇▇;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan and the Refinanced Loans);
(xiii) make any loans or advances to any third party (party, including any Affiliate of its shareholders, partners, members, Principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, Principal or securities Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its Affiliates manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other than as permitted under the Transaction Documents; (vii) amend, modify Person or otherwise change the certificate of formation, the Borrower’s organizational documents or other organizational documents of the Borrower without the prior consent of Administrative Agent or any applicable Lender to conduct its business solely in any manner that its own name in order not: (A) violates to mislead others as to the separate existence covenants set forth the Borrower’s organizational documents, entity with which such other party is transacting business; or (B) amends, modifies or otherwise changes any provision of the Borrower’s organizational documents to suggest that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) Borrower is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated responsible for the debts of any other third party (including any of its shareholders, partners, members, principals or Affiliates, or any shareholder, partner, member, principal or Affiliate thereof);
(xvi) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations (which may be zero employees);
(xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and hold itself out character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Property at such time to do so and Borrower’s constituent owners shall not be responsible for required to fund or have its credit available advance any additional capital to satisfy this obligation;
(xviii) seek dissolution or winding up in whole, or in part;
(xix) file a voluntary petition or otherwise initiate proceedings to have Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower or any Principal, or make any general assignment for the benefit of creditors of Borrower or any Principal, or admit in writing the inability of Borrower or any Principal to pay its debts generally as they become due or obligations declare or effect a moratorium on Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person; .
(xiib) permit If Borrower is a limited partnership, then any Affiliate general partner of Borrower must also be a special purpose entity and comply with the provisions of this Section 8.12.
(c) Borrower and any Person required to be a special purpose entity pursuant to the terms of this Section 8.12 shall not amend or constituent party independent access modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8.12 or that would otherwise adversely affect Borrower’s special purpose entity status without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned. Promptly after ▇▇▇▇▇▇’s written request from time to its bank accountstime, except for customary access by but not more frequently than once in any calendar year, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that Borrower and any other Person required to be a special purpose entity pursuant to the terms of this Section 8.12 are in compliance with the provisions of this Section 8.12.
(d) The organizational documents of Borrower shall provide that the business and affairs of Borrower shall be (A) managed by or under the Transferor direction of a board of one or Servicer in accordance with more directors designated by the Transaction Documents sole member of Borrower or (B) Affiliates in connection a committee of managers designated by the sole member of Borrower (a “Committee”) or (C) by the sole member of Borrower, and at all times there shall be at least one (1) duly appointed Independent Director or Independent Manager. In addition, the organizational documents of Borrower shall provide that no Independent Director or Independent Manager (as applicable) of Borrower may be removed or replaced without Cause and unless Borrower provides Lender with administrativenot less than three (3) Business Days’ prior written notice of (a) any proposed removal of an Independent Director or Independent Manager (as applicable), back-office operations and related services provided together with a statement as to the Borrowerreasons for such removal, Transferor or Servicer from time to time; and (xiiib) pledge its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts identity of the Borrowerproposed replacement Independent Director or Independent Manager, as applicable, together with a certification that such replacement satisfies the requirements set forth in the organizational documents for an Independent Director or pay the debts of the Borrower; Independent Manager (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted in accordance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction Documentsas applicable).
Appears in 1 contract
Sources: Master Loan Agreement
Special Purpose Entity Requirements. Except All of the provisions of this Section 6.12 are individually and collectively referred to as otherwise permitted by this Agreementthe "SPE Requirements".
(a) Borrower has not and, until repayment in full of the Borrower Indebtedness, shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) except as otherwise expressly permitted under the Loan Documents, merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, including, without limitation, undertaking any Division, without in each case obtaining the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, terminate the provisions of Borrower's formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract this Section 6.12 or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; otherwise adversely affect Borrower's single purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness the Indebtedness, except as permitted under Section 8.1; provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Transaction Documents; Mortgaged Property at such time to do so and Borrower's constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viviii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xi) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan);
(xiii) make any loans or advances to any third party (party, including any Affiliate of its shareholders, partners, members, Principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, Principal or securities Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its Affiliates manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other than as permitted under the Transaction Documents; (vii) amend, modify Person or otherwise change the certificate of formation, the Borrower’s organizational documents or other organizational documents of the Borrower without the prior consent of Administrative Agent or any applicable Lender to conduct its business solely in any manner that its own name in order not: (A) violates to mislead others as to the separate existence covenants set forth the Borrower’s organizational documents, entity with which such other party is transacting business; or (B) amends, modifies or otherwise changes any provision of the Borrower’s organizational documents to suggest that (x) by its terms cannot be modified at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent or any applicable Lender’s consent, or (z) Borrower is otherwise prohibited from being amended or modified pursuant to this Agreement or the other Transaction Documents; (viii) permit its assets to be listed as assets on the financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated responsible for the debts of any other third party (including any of its shareholders, partners, members, principals or Affiliates, or any shareholder, partner, member, principal or Affiliate thereof);
(xvi) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and hold itself out character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Mortgaged Property at such time to do so and Borrower's constituent owners shall not be responsible for required to fund or have its credit available advance any additional capital to satisfy this obligation;
(xviii) seek dissolution or winding up in whole, or in part;
(xix) file a voluntary petition or otherwise initiate proceedings to have Borrower or any Principal adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or any Principal, or file a petition seeking or consenting to reorganization or relief of Borrower or any Principal as debtor under any applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Principal; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any Principal or of all or any substantial part of the properties and assets of Borrower or any Principal, or make any general assignment for the benefit of creditors of Borrower or any Principal, or admit in writing the inability of Borrower or any Principal to pay its debts generally as they become due or obligations declare or effect a moratorium on Borrower or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person; .
(xiib) permit If Borrower is a limited partnership, then any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance general partner of Borrower must also be a special purpose entity and comply with the Transaction Documents or provisions of this Section 6.12.
(Bc) Affiliates in connection with administrative, back-office operations Borrower and related services provided any Person required to be a special purpose entity pursuant to the terms of this Section 6.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 6.12 or that would otherwise adversely affect Borrower's special purpose entity status without the prior written consent of Lender, Transferor which consent shall not be unreasonably withheld, delayed or Servicer conditioned. Promptly after Lender's written request from time to time; (xiii) pledge , but not more frequently than once in any calendar year, Borrower shall deliver to Lender evidence satisfactory to Lender in its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate reasonable discretion that Borrower and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted required to be a special purpose entity pursuant to the terms of this Section 6.12 are in accordance compliance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction DocumentsSection 6.12.
Appears in 1 contract
Special Purpose Entity Requirements. Except All of the provisions of this Section 6.12 are individually and collectively referred to as otherwise permitted by this Agreementthe “SPE Requirements”.
(a) Borrower has not and, until repayment in full of the Borrower Indebtedness, shall not not:
(i) without the prior unanimous written consent of Onex Direct Lending BDC Fund and the Independent Manager, to take any material action; provided, however, that, so long as any Obligation is outstanding, Onex Direct Lending BDC Fund may not vote on, or authorize the taking of any material action, unless there is at least one Independent Manager then serving in such capacity; (ii) own any asset or property other than the Collateral Portfolio and as otherwise permitted under the Transaction Documents; (iii) engage in any business or activity other than the acquisition, ownership, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Mortgaged Property and such incidental personal property as may be necessary for the operation of the Mortgaged Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, or, except for a permitted Title Transfer, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, terminate the provisions of Borrower’s formation or entity management documents or amend such organizational documents in a manner which would result in a breach of any of the representations, warranties or covenants set forth in the this Section 6.12 or that would otherwise adversely affect Borrower’s organizational documents and under the Transaction Documents; (iv) enter into any contract or agreement with any Affiliate, any constituent party of the Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable, fair and substantially similar to those that would be available on an arm’s length basis with third parties other than any such party, in each case, other than capital contributions and distributions as permitted under the Transaction Documents; single purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of any of its shareholders, partners, members, Principals, Affiliates, or any shareholder, partner, member, principal or affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtednessdebt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than Indebtedness the Indebtedness, except as permitted under Section 8.1; provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations and provided that there is sufficient cash flow from the Transaction Documents; Hotel Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy such obligation;
(viviii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets so long as there is sufficient cash flow from the Hotel Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy this obligation;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of its shareholders, partners, members, Principals and Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person or fail to prepare and maintain its own financial statements in accordance with the Uniform System of Accounts and susceptible to audit, or if such financial statements are consolidated fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) other than the Master Lease, enter into any contract or agreement with any of its shareholders, partners, members, Principals or Affiliates, any guarantor or indemnitor of all or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xi) fail to correct any misunderstandings actually known by Borrower regarding the separate identity of Borrower;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of Borrower (except for a guarantor or indemnitor of the Loan);
(xiii) make any loans or advances to any third party (party, including any Affiliate of its shareholders, partners, members, Principals or constituent party)Affiliates, or acquire obligations any shareholder, partner, member, Principal or securities Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of its Affiliates manager or managing agent with reference to the Premises);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from any other than as permitted under the Transaction Documents; (vii) amend, modify Person or otherwise change the certificate of formation, the Borrower’s organizational documents or other organizational documents of the Borrower without the prior consent of Administrative Agent or any applicable Lender to conduct its business solely in any manner that its own name in order not (A) violates to mislead others as to the separate existence covenants set forth the Borrower’s organizational documentsentity with which such other party is transacting business, or (B) amendsto suggest that Borrower is responsible for the debts of any third party (including any of its shareholders, modifies partners, members, principals or Affiliates, or any shareholder, partner, member, principal or Affiliate thereof);
(xvi) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xvii) intentionally fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Hotel Property at such time to do so and Borrower’s constituent owners shall not be required to fund or advance any additional capital to satisfy this obligation;
(xviii) seek dissolution or winding up in whole, or in part;
(xix) file a voluntary petition or otherwise changes initiate proceedings to have Borrower or Indemnitor adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against Borrower or Indemnitor, or file a petition seeking or consenting to reorganization or relief of Borrower or Indemnitor as debtor under any provision applicable federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect to Borrower or Indemnitor; or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or Indemnitor or of all or any substantial part of the Borrower’s organizational documents that properties and assets of Borrower or Indemnitor, or make any general assignment for the benefit of creditors of Borrower or Indemnitor, or admit in writing in a legal proceeding the inability of Borrower or Indemnitor to pay its debts generally as they become due (x) by its terms cannot be modified other than at any time when an Advance outstanding, (y) by its terms cannot be modified without Administrative Agent the request of Lender or any applicable Lender’s consent, agents or (z) is otherwise prohibited from being amended employees or modified in any information provided to Lender pursuant to this Agreement or the other Transaction DocumentsLoan Documents and unless failure to make such admission would be a violation of law) or declare or effect a moratorium on Borrower or Indemnitor debt or take any action in furtherance of any such action; or
(viiixx) permit intentionally conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud its assets to be listed as assets on creditors or the financial statement creditors of any other Person; provided.
(b) If Borrower is, howeveror ever becomes, a limited partnership, then any general partner of Borrower must also be a special purpose entity and comply with the provisions of this Section 6.12.
(c) Borrower and any Person required to be a special purpose entity pursuant to the terms of this Section 6.12 shall not amend or modify any of their respective formation or entity management documents in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 6.12 or that would otherwise adversely affect Borrower’s assets may special purpose entity status without the prior written consent of Lender, which consent shall not be included in a consolidated financial statement of its Affiliates (including Onex Direct Lending BDC Fund) provided that (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Borrower and such Affiliates (including Onex Direct Lending BDC Fund) and to indicate that the Borrowerunreasonably withheld, delayed or conditioned. Promptly after Lender’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates (including Onex Direct Lending BDC Fund) or any other Person and (B) such assets shall be listed on the Borrower’s own separate balance sheet; (ix) seek or effect the liquidation, division, dissolution, winding up, liquidation, consolidation or merger, in whole or in part, of the Borrower; (x) commingle the funds and other assets of the Borrower with those of any Affiliate or constituent party or any other Person, and hold all of its assets in its own name; (xi) guarantee or become obligated for the debts of any other Person and hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person; (xii) permit any Affiliate or constituent party independent access to its bank accounts, except for customary access by (A) the Transferor or Servicer in accordance with the Transaction Documents or (B) Affiliates in connection with administrative, back-office operations and related services provided to the Borrower, Transferor or Servicer written request from time to time; (xiii) pledge , but not more frequently than once in any calendar year, Borrower shall deliver to Lender evidence satisfactory to Lender in its assets to secure the obligations of any other Person; (xiv) have any of its obligations guaranteed by any Affiliate reasonable discretion that Borrower and permit any Affiliate to hold such Affiliate’s credit out as available to pay the debts of the Borrower, or pay the debts of the Borrower; (xv) buy or hold evidence of Indebtedness issued by any other Person other than Permitted Investments and/or Indebtedness issued or permitted required to be a special purpose entity pursuant to the terms of this Section 6.12 are in accordance compliance with the terms and provisions of this Agreement and the other Transaction Documents; and (xvi) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity, other than Permitted Investments made in accordance with the terms and provisions of this Agreement and the other Transaction DocumentsSection 6.12.
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