Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, that Borrower is, shall be and shall continue to be a Special Purpose Entity. (b) The representations, warranties and covenants set forth in Section 4.1.30 (a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document. (c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 4 contracts
Sources: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, that Borrower is, shall be and shall continue to be each SPE Constituent Entity is a Special Purpose Entity.
(b) The representations, representations and warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) Any amendment or amendment and restatement of any of Borrower’s organizational documents on or prior to the Closing Date has been accomplished in accordance with, and was permitted by, the relevant provisions of each such organizational document (as the same existed prior to such amendment or amendment and restatement).
(d) All of the stated facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all material respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all material respects. Borrower has and each SPE Constituent Entity have complied and will comply with, with all of the stated facts and assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower will and each SPE Constituent Entity have complied and will comply with all of the stated facts and assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which an assumption shall be is made or a fact stated in the Insolvency Opinion and any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion.
Appears in 3 contracts
Sources: Loan Agreement (Brixmor Property Group Inc.), Senior Mezzanine Loan Agreement (Brixmor Property Group Inc.), Loan Agreement (Brixmor Property Group Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 2 contracts
Sources: Loan Agreement (Acadia Realty Trust), Loan Agreement (Acadia Realty Trust)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Borrower hereby represents, warrants and covenantscovenants that (i) such Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) its Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in including any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Each Borrower has complied and will comply with, and each Principal has complied and each Borrower will cause its Principal to comply with, all of the assumptions made with respect to each such Borrower and its Principal in the Insolvency Opinion. Each Borrower will have complied and will comply with with, and each Principal will have complied and each Borrower shall cause its Principal to comply with, all of the assumptions made with respect to each such Borrower and its Principal in any Additional Insolvency Opinion. Each entity other than Borrower Borrowers and Principals with respect to which an assumption shall be made in the Insolvency Opinion or in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in the Insolvency Opinion or any such Additional Insolvency Opinion.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All Borrower covenants and agrees that Borrower shall provide Lender with fifteen (15) days’ prior written notice prior to the removal of the facts stated any Independent Director of Borrower.
(d) Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
Appears in 2 contracts
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Special Purpose Entity/Separateness. (ai) Until the Total Debt has been paid in full, Borrower each Issuer hereby represents, warrants and covenantscovenants that (A) such Issuer is, shall be and shall continue to be a Special Purpose Entity, provided that Borrower the requirements set forth in the definition of the term “Special Purpose Entity” will not apply to such Issuer’s relationship with the other Issuers, and (B) Principal is, shall be and shall continue to be a Special Purpose Entity.
(bii) The representations, warranties and covenants set forth in Section 4.1.30
(a6.01(dd)(i) shall survive for so long as any amount remains payable to Lender Trustee for the benefit of Noteholders under this Agreement Indenture or any other Loan Financing Document.
(ciii) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Financing Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower Each Issuer has complied and will comply with, and Principal has complied and Issuers will cause Principal to comply with, all of the assumptions made with respect to Borrower each Issuer and Principal in the Insolvency Opinion. Borrower Each Issuer will have complied and will comply comply, or cause Principal to comply, with all of the assumptions made with respect to Borrower such Issuer and Principal in any Additional Insolvency Opinion. Each entity other than Borrower an Issuer or Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 2 contracts
Sources: Note Indenture (Kerzner International LTD), Note Indenture (Kerzner International LTD)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will shall comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with thirty (30) days’ prior written notice prior to the removal of an Independent Director of Borrower.
Appears in 2 contracts
Sources: Loan Agreement (TNP Strategic Retail Trust, Inc.), Loan Agreement (TNP Strategic Retail Trust, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that the Borrower is, shall be and shall continue to be a Special Purpose Entity. If Borrower consists of more than one Person, each such Person shall be a Special Purpose Entity (provided any representations and warranties as to a Borrower shall be deemed made by each Borrower as to its Borrowing entity only). Lender acknowledges that the single purpose provisions contained in the organizational documents of Borrower and its general partners meet the definition of "Special Purpose Entity" as set forth herein.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the any Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional such Insolvency Opinion.
Appears in 2 contracts
Sources: Loan Agreement (Behringer Harvard Reit I Inc), Loan Agreement (Behringer Harvard Reit I Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Individual Borrower hereby represents, warrants and covenants, covenants that such Individual Borrower and each Sole Member is, shall be and shall continue to be a Special Purpose Entity, except (i) as set forth in Schedule 4.1.30, and/or (ii) to the extent such Individual Borrower or Sole Member conveys one or more Individual Properties or interests in an Individual Borrower, as applicable, in connection with the exercise of Borrower’s rights in accordance with Section 2.5.2, Section 2.5.3 or Section 2.5.5, it being acknowledged and agreed that following such conveyance, the fact that an Individual Borrower owned such Individual Property, or that a Sole Member owned such interests so conveyed, and matters associated with such Individual Property or interests so conveyed, shall constitute exceptions to the requirements set forth in the definition of “Special Purpose Entity.” For the avoidance of doubt, except with respect to ongoing contingent liabilities, nothing on Schedule 4.1.30 shall be construed to permit Borrower to prospectively engage in any of the noncomplying behavior set forth on such schedule.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) above shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Sole Member will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption is made or a fact stated in any Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency Opinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein. Each entity other than Borrower with respect to which stated facts or any assumption shall be made in the Insolvency Opinion or any Additional Insolvency Opinion will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion or Additional Insolvency Opinion.
(d) Each Individual Borrower covenants and agrees that Borrower shall provide Lender with two (2) Business Days’ prior written notice prior to the removal of an Independent Director of any of Borrower or Sole Member and no Independent Director shall be removed other than for Cause; provided, however, that, for purposes of clarity, the foregoing provisions shall not apply to any resignation by an Independent Director.
(e) Except as set forth on Schedule 4.1.30, Each Borrower that is a “recycled” SPE hereby further represents to Lender that as of the Closing Date:
(i) It has been duly formed and is and has been since the date of its formation validly existing in the state in which it was formed and is currently qualified to do business in each other jurisdiction where such qualification is required in connection with its current operations;
(ii) it has no judgments or liens of any nature against it except for Permitted Encumbrances;
(iii) Except as may be disclosed in any zoning report or property condition report delivered to Lender prior to the Closing Date and to such Borrower’s knowledge, it is in compliance in all material respects with all laws, regulations and orders applicable to such Borrower and has received all permits necessary for it to operate and for which a failure to possess would materially and adversely affect its condition, financial or otherwise;
(iv) Except as set forth on Schedule 4.1.4, to its knowledge there is not any pending or threatened litigation involving itself that, if adversely determined, might materially adversely affect its condition (financial or otherwise) or the condition or ownership of the relevant Individual Property or Properties owned by it;
(v) It is not involved in any dispute with any taxing authority;
(vi) It has paid or has caused to be paid all real estate taxes that are due and payable with respect to the related Individual Property or Properties and any Other Properties;
(vii) Except as set forth in the Recycled SPE Certificates, it has never owned any real property other than the related Individual Property or Properties owned by it as of the date hereof and has never engaged in any business except the ownership and operation of the related Individual Property or Properties;
(viii) Except as set forth on Schedule 4.1.4, it is not, nor has ever been party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, might materially adversely affect its financial condition (financial or otherwise) or the condition or ownership of the relevant Individual Property or Properties owned by it, including with respect to Other Properties;
(ix) It has provided Lender with financial statements that are, when taken as a whole, true and correct in all material respects and that accurately represent the financial condition of the Properties as of the date of such financial statements;
(x) It has provided Lender with a Phase I Environmental Report for the related Individual Property;
(xi) at all times since its formation, it has substantially complied with the separateness covenants referred to in the definition of “Special Purpose Entity”; and
(xii) it has no contingent or actual obligations not related to the related Individual Property or Properties;
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that each SPE Entity has been since its formation, that Borrower is, shall be and shall continue to be a Special Purpose Entity, provided that with respect to the status of TSP Owner as a Special Purpose Entity from its formation through the Closing Date, such representation and warranty is made only to the extent of Borrower’s actual knowledge.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower Each SPE Entity has complied and will comply with, with all of the assumptions made with respect to Borrower such SPE Entity in the Insolvency Opinion. Borrower Each SPE Entity will have complied and will comply with all of the assumptions made with respect to Borrower such SPE Entity in any Additional Insolvency Opinion. Each entity other than Borrower any SPE Entity with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion. Each of the foregoing statements regarding the truth of facts stated or assumptions made in the Insolvency Opinion or any Additional Insolvency Opinion with respect to TSP Owner during the period from its formation through the Closing Date, and with respect to TSP Owner’s compliance with any such statements or assumptions during such period, are made only to the extent of Borrower’s actual knowledge.
Appears in 2 contracts
Sources: Loan Agreement (Caesars Acquisition Co), Loan Agreement (Harrahs Entertainment Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will have complied and will comply with with, and Principal will have complied and Borrower shall cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in the Insolvency Opinion or in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in the Insolvency Opinion or any such Additional Insolvency Opinion.
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full and the obligations under the First Mezzanine Loan Documents, the Second Mezzanine Loan Documents and the Third Mezzanine Loan Documents have been paid in full, each Borrower hereby represents, warrants and covenants, covenants that such Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Each Borrower has complied and will comply with all facts stated of the assumptions made with respect to such Borrower in the Insolvency Opinion.
(d) Each Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) each Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to each Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than any Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered for any reason in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the stated facts and assumptions made with respect to Borrower it in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an stated facts or any assumption shall be made in the Insolvency Opinion or any Additional Insolvency Opinion will have complied and will comply with all of the stated facts and assumptions made with respect to it in any Insolvency Opinion or Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full and the obligations under the Mortgage Loan Documents, the Loan Documents and the Mezzanine Loan Documents have been paid in full, each Borrower hereby represents, warrants and covenants, covenants that (i) such Borrower is, shall be and shall continue to be a Special Purpose Entity, (ii) each Mortgage Borrower is, shall be and shall continue to be a “Special Purpose Entity” (as such term is defined in Section 1.1 of the Mortgage Loan Agreement as in effect on the date hereof), and (iii) each First Mezzanine Borrower is, shall be and shall continue to be a “Special Purpose Entity” (as such term is defined in Section 1.1 of the First Mezzanine Loan Agreement as in effect on the date hereof).
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Each Borrower has complied and will comply with all facts stated of the assumptions made with respect to such Borrower in the Insolvency Opinion.
(d) Each Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) each Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to each Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than any Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
(e) Mortgage Borrowers and First Mezzanine Borrowers have complied, and each Borrower will cause Mortgage Borrowers and First Mezzanine Borrowers, as applicable, to comply, with all of the assumptions made with respect to Mortgage Borrowers and First Mezzanine Borrowers, as applicable, in the Insolvency Opinion and each Borrower will cause Mortgage Borrowers and First Mezzanine Borrowers, as applicable, to comply with all of the assumptions made with respect to Mortgage Borrowers and First Mezzanine Borrowers, as applicable, in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each of Owner and Borrower hereby represents, warrants and covenants, covenants that each of Owner and Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.305.1.39
(a) shall survive for so long as any amount portion of the Debt remains payable to Lender under this Agreement Agreement, the Note or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents or a Transfer of the Collateral Property (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall at all times be true and correct in all respects. Each of Owner and Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower it in the Insolvency Opinion. Each of Owner and Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Owner and Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects material to the opinions set forth therein and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will will, and shall cause Principal to, have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the factual assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any factual assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”"ADDITIONAL INSOLVENCY OPINION"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the factual assumptions made with respect to Borrower it in the Insolvency Opinion. Borrower will have complied and will comply with all of the factual assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an a factual assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the factual assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower or with respect to an Individual Borrower, the earlier release of the liens of the Mortgages on all Properties owned by such Individual Borrower, each of the Individual Borrowers and the Baltimore Owner hereby represents, warrants and covenantscovenants that (i) it is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all of the facts stated and all of the assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Each Individual Borrower and Baltimore Owner has complied and will comply with, and Principal has complied and each Individual Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower such Individual Borrower, Baltimore Owner and Principal in the Insolvency Opinion. Each Individual Borrower and Baltimore Owner will have complied and will comply with all of the assumptions made with respect to Borrower such Individual Borrower, Baltimore Owner and Principal in any Additional Insolvency Opinion. Each entity other than Borrower an Individual Borrower, Baltimore Owner and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.20(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that no resignation or removal of any Independent Director, and no appointment of any successor Independent Director, shall be effective until Lender shall have consented in writing to such appointment (which consent shall be deemed given if the successor Independent Director is provided by a nationally recognized professional services provider and otherwise shall not be unreasonably withheld, conditioned or delayed), provided however, that no Independent Director shall resign or be removed, and no successor Independent Director shall be appointed, without in each case at least thirty (30) days’ prior written notice prior to Lender.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (TNP Strategic Retail Trust, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with fifteen (15) days’ prior written notice prior to the removal of an Independent Director of any Borrower and/or Principal.
(e) Borrower (i) is and has always been duly formed, validly existing and in good standing in the state of its incorporation or formation and in all other jurisdictions where it is qualified to do business; (ii) has not had and does not have any judgments or liens of any nature against it (except for Liens for Taxes not yet due); (iii) has been and is in compliance with all Legal Requirements and has received and maintains all Licenses; (iv) is not the subject of, or currently involved in any capacity in, any pending or threatened litigation; (v) is not, and has not been, involved in any dispute with any taxing authority; (vi) has paid all Taxes and Other Charges; (vii) has never owned any property other the applicable Property; (viii) is not now and has not ever been a party to any lawsuit, arbitration, summons or legal proceeding; (ix) has not failed to provide Lender with complete financial statements that reflect a fair and accurate view of its financial condition; and (x) has no material contingent or actual obligations not related to the applicable Property.
(i) Prior Lender is the current holder of the Prior Loan, (ii) the Prior Loan has been indefeasibly satisfied in full on or before the date hereof, (iii) none of Borrower, Principal, nor Guarantor have any remaining liabilities or obligations in connection with the Prior Loan (other than environmental and other limited and customary indemnity obligations), (iv) Prior Lender has released all collateral and security for the Prior Loan as of the date hereof, (v) the Swap, if any, relating to the Prior Loan, has been terminated on or before the date hereof, (vi) all obligations of Borrower and Guarantor under such Swap, if any, have been satisfied in full on or before the date hereof, (vii) none of Borrower, Principal, nor Guarantor have any remaining liabilities or obligations in connection with such Swap, if any, and (viii) either no collateral or security was provided in connection with such Swap, if any, or all such collateral or security given in connection therewith has been released as of the date hereof.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
subsection (a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of Borrower.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will shall comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with thirty (30) days’ prior written notice prior to the removal of an Independent Director of any of Borrower.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Borrower hereby represents, warrants and covenants, covenants that each Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.305.1.39
(a) shall survive for so long as any amount portion of the Debt remains payable to Lender under this Agreement Agreement, the Note or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Non-Consolidation Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents or a Substitution, Total Defeasance, Partial Defeasance or Transfer of any Collateral Property (an “"Additional Insolvency Non-Consolidation Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall at all times be true and correct in all respects. Each Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower it in the Insolvency Non-Consolidation Opinion. Each Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Non-Consolidation Opinion. Each entity other than a Borrower with respect to which an assumption shall be made in any Additional Insolvency Non-Consolidation Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Non-Consolidation Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower ishas at all times since its formation been, shall be and shall continue to be a Special Purpose Entity and (ii) Principal has at all times since its formation been, shall be and shall continue to be a Special Purpose Entity (Lender acknowledges that the single purpose provisions contained in the organizational documents of Borrower and Principal satisfy the requirements of a Special Purpose Entity).
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all facts stated and all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will comply with all of the assumptions made with respect to Borrower and Principal in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Affiliate of Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Fairchild Corp)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower or Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower or Principal in any Additional Insolvency Opinion. Each entity other than Borrower or Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Koger Equity Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower or Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower or Principal in any Additional Insolvency Opinion. Each entity other than Borrower or Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Koger Equity Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity, and (ii) any Principal shall be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.24(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-non consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has and any Principal have complied and will comply with, with all of the assumptions made with respect to Borrower and any Principal in the Insolvency Opinion. Borrower and any Principal will have complied and will comply with all of the assumptions made with respect to Borrower and any Principal in any Additional Insolvency Opinion. Each entity other than Borrower and any Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion. All of the representations and warranties in this Article 4 and elsewhere in the Loan Documents (i) shall survive for so long as any portion of the Debt remains owing to Lender and (ii) shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal of an Independent Director of Borrower.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, that Borrower is, shall be and shall continue to be each SPE Constituent Entity is a Special Purpose Entity, except as set forth on Schedule 4.1.30.
(b) The representations, representations and warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) Any amendment or amendment and restatement of any of Borrower’s or any of SPE Constituent Entity’s organizational documents on or prior to the Closing Date has been accomplished in accordance with, and was permitted by, the relevant provisions of each such organizational document (as the same existed prior to such amendment or amendment and restatement).
(d) All of the stated facts stated and all of the factual assumptions made in the Insolvency OpinionOpinion delivered on the Closing Date, including, but not limited to, in any exhibits attached thereto, are true and correct in all material respects as of the Closing Date and all facts stated and all any factual assumptions made in any subsequent non-consolidation non‑consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct correct, in all material respects, as of the date of such Additional Insolvency Opinion. Borrower has complied and will comply witheach SPE Constituent Entity have complied, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower will have complied and will comply each SPE Constituent Entity intends to comply, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower Borrower, as applicable, in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which an a factual assumption shall be is made or a fact stated in the Insolvency Opinion and, in connection with any Additional Insolvency Opinion Opinion, will be made, have complied and will comply or intends to comply, in all material respects, with all of the factual assumptions made and facts stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion.
(e) Each assignment or transfer of limited liability company or partnership interests in Borrower and each SPE Constituent Entity by all prior members or partners of such Person to such Person’s successor member, partner or their sole member, as the case may be, and the admission of such Person’s successor member or applicable sole member, as the case may be, as a member of such Person or successor partner as a limited partner or general partner of such Person, as the case may be, were accomplished in accordance with, and were permitted by, the applicable limited liability company agreement or limited partnership agreement governing the affairs of such Person at the time of such assignment or transfer and admission, and following each such assignment and admission, such Borrower or SPE Constituent Entity was continued without dissolution; there have been at all times since the formation of each Borrower and SPE Constituent Entity at least one member or one general partner and one limited partner, as applicable, of each Borrower and SPE Constituent Entity.
(f) Any payments made pursuant to the Loan Documents to or for the benefit of any Borrower or Mezzanine Borrower shall constitute distributions to or at the discretion of the applicable equity owner of such entity.
(g) Borrower has no judgments or Liens of any nature against it except for Section 2.9 Tax liens not yet delinquent and the Permitted Encumbrances.
(h) Borrower has provided Lender with complete financial statements that reflected a fair and accurate view, in all material respects, of the entity’s financial conditions as of the date set forth therein in all material respects.
(i) With respect to each Borrower and SPE Constituent Entity, (i) such Borrower or SPE Constituent Entity is and always has been duly formed, validly existing and in good standing in the State in which it was formed and in any other jurisdictions where it is qualified to do business; (ii) such Borrower or SPE Constituent Entity is in compliance with all laws, regulations and orders applicable to such Borrower or SPE Constituent Entity in all material respects and had received all material permits necessary for such Borrower or SPE Constituent Entity to operate, unless a failure to comply with or possess the same would not materially and adversely affect the condition, financial or otherwise, of such Borrower or SPE Constituent Entity; (iii) subject to Section 4.1.4 hereof, as of the Closing Date, no Borrower or SPE Constituent Entity was aware of any pending or threatened litigation involving such Borrower or SPE Constituent Entity that, if adversely determined, would be reasonably likely to materially adversely affect the condition (financial or otherwise) of such Borrower or SPE Constituent Entity, or the condition or ownership of the property owned by such Borrower; (iv) such Borrower or SPE Constituent Entity is not involved in any dispute with any taxing authority, other than any contesting of taxes in accordance with the terms and conditions of this Agreement; (v) such Borrower has paid or has caused to be paid all real estate taxes that are due and payable with respect to its applicable Individual Property other than any such taxes which are not yet delinquent or were being contested in accordance with the terms and conditions of this Agreement; (vi) such Borrower has never owned any real property other than its applicable Individual Property and, with respect to any Previously Owned Property Borrower, the related Previously Owned Property, and such SPE Constituent Entity has never owned any real property; (vii) such Borrower or SPE Constituent Entity is not, nor has it ever been party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, would reasonably be expected to have an Individual Material Adverse Effect on the condition (financial or otherwise) of such Borrower or SPE Constituent Entity or the condition or ownership of the property owned by such Borrower or SPE Constituent Entity; and (viii) except as set forth in the environmental reports delivered to Lender for each Individual Property in connection with the closing of the Loan, the most recent Phase One environmental audit for each Individual Property recommends no action.
(j) Each Borrower and SPE Constituent Entity has no material contingent or actual obligations related to the Previously-Owned Property except (i) to the extent such obligations are (x) covered by insurance for a period not less than two (2) years following the sale of such Previously-Owned Property, or (y) subject to reimbursement from a third-party or (ii) Permitted Encumbrances (collectively, “Permitted POP Obligations”).
(k) Except as set forth in Section 4.1.30(m) hereof or the Permitted POP Obligations, Borrower has no material contingent or actual obligations not related to the Property and each SPE Constituent Entity has no material contingent or actual obligations not related to its partnership interest or limited liability company interest in the applicable Borrower.
(l) The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that except for duties to such Borrower and SPE Constituent Entity as set forth in the Organizational Documents (including duties to the member and such Borrower and SPE Constituent Entity’s creditors solely to the extent of their respective economic interests in such Borrower and such SPE Constituent Entity, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower and such SPE Constituent Entity, and (iii) the interests of any group of Affiliates of which Borrower and such SPE Constituent Entity is a part), the Independent Directors or Independent Managers shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware Limited Liability Company Act, an Independent Director or Independent Manager shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director or Independent Manager acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that all right, power and authority of the Independent Directors or Independent Managers shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Loan Party’s Organizational Documents. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that notwithstanding any other provision of the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents to the contrary, each Independent Director or Independent Manager, in its capacity as an Independent Director or Independent Manager, as applicable, may only act, vote or otherwise participate in those matters referred to in Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s or Independent Manager’s, as applicable, act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower unless, pursuant to the provisions of Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director or Independent Manager. The Organizational Documents of each Borrower and each SPE Constituent Entity that is not a Delaware limited liability company contain terms and provisions similar to the terms and provisions set forth in this subclause (l) to the extent permitted by applicable law.
(m) Except as set forth on Schedule 4.1.30, each Borrower and each SPE Constituent Entity hereby represents with respect to itself that from the date of such Borrower’s formation to the date hereof:
(i) its business has been limited solely to (A) in the case of ▇▇▇▇▇▇▇▇, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing, renovating, improving, financing, refinancing and operating and managing the Properties, its Previously Owned Property (if any) or its Individual Property, entering into financings and refinancings of the Property and any Previously Owned Property, and transacting any and all lawful business that was incident, necessary or appropriate to accomplish the foregoing and (B) in the case of a SPE Constituent Entity, acting as a general partner of a limited partnership Borrower or as a member of a limited liability company Borrower and transaction lawful business that is incident, necessary and appropriate to accomplish the foregoing;
(ii) reserved;
(iii) it has never owned any real property other than, in the case of ▇▇▇▇▇▇▇▇, the Property or its Individual Property or Previously Owned Property (if any) and it has not engaged in any business other than as set forth in clause (i) above;
(iv) other than (A) capital contributions and distributions permitted under the terms of its organizational documents and (B) the Fremont Ground Lease, it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party;
(v) it has not (a) made any loans to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of the Property, in each case made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity;
(vi) it has paid its debts and liabilities from its assets as the same have become due or such debts and liabilities have been repaid or discharged as of the date hereof;
(vii) except with respect to any matters that have been duly resolved as of the date hereof, it has observed or caused to be observed all organizational formalities that are necessary to preserve and keep in full force and effect its existence and rights (charter and statutory);
(viii) except with respect to prior financings that have been repaid or otherwise discharged, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and ▇▇▇▇▇▇▇▇’s and SPE Constituent Entity’s assets have not been listed as assets on the financial statement of any other Person, unless (a) the financial statements of such other Person contained an appropriate notation indicating the separateness of Borrower or SPE Constituent Entity from such Person and indicating that Borrower’s or SPE Constituent Entity’s assets and credit were not available to satisfy the debts and other obligations of such Person and (b) such assets were also listed on the Borrower’s or SPE Constituent Entity’s own balance sheet. Each of Borrower and SPE Constituent Entity, to the extent applicable, has filed its own tax returns (except to the extent that it has been a disregarded entity not required to file tax returns under applicable law). Each of Borrower and SPE Constituent Entity, to the extent applicable, has maintained its books, records, resolutions and agreements as official records;
(ix) except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially-reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as its agent, it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and any stationery, invoices and checks maintained or utilized by Borrower and SPE Constituent Entity have been separate;
(x) it has not commingled its assets with those of any other Person, other than co-borrowers under prior loans that have been repaid in full, and has held all of its assets in its own name;
(xi) it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person, other than co-borrowers or guarantors under prior financings that have been repaid or otherwise discharged or as otherwise imposed by law;
(xii) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Mezzanine Debt has been paid in full, Mezzanine Borrower hereby represents, warrants and covenants, covenants that Mezzanine Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in this Section 4.1.30
(a) 4.1.29 shall survive for so long as any amount remains payable to Mezzanine Lender under this Agreement or any other Mezzanine Loan Document.
(c) All of the facts stated and all of the factual assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any factual assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Mezzanine Loan Documents (an “Additional Insolvency Opinion”"ADDITIONAL INSOLVENCY OPINION"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Mezzanine Borrower has complied and will comply with, with all of the factual assumptions made with respect to Borrower it in the Insolvency Opinion. Mezzanine Borrower will have complied and will comply with all of the factual assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Mezzanine Borrower with respect to which an a factual assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the factual assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Entertainment Properties Trust)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) any Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all material respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all material respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity (Lender acknowledges that the single purpose provisions contained in the organizational documents of Borrower and Principal satisfy the requirements of a Special Purpose Entity).
(b) The representations, warranties and covenants set forth in Section SECTION 4.1.30
(aA) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all facts stated and all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will comply with all of the assumptions made with respect to Borrower and Principal in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”"ADDITIONAL INSOLVENCY OPINION"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Affiliate of Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity. Lender acknowledges that the single purpose provisions contained in the operating agreement of the Borrower as of the date hereof satisfy the requirements of a Single Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Borrower has complied and will comply with all facts stated and all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will comply with all of the assumptions made with respect to Borrower and Principal in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Affiliate of Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that each Individual Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower it in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with fifteen (15) days’ prior written notice prior to the removal of an Independent Director of any Borrower and/or Principal.
(e) Borrower (i) is and has always been duly formed, validly existing and in good standing in the state of its incorporation or formation and in all other jurisdictions where it is qualified to do business; (ii) has not had and does not have any judgments or liens of any nature against it (except for Liens for Taxes not yet due); (iii) has been and is in compliance with all Legal Requirements and has received and maintains all Licenses; (iv) is not the subject of, or currently involved in any capacity in, any pending or threatened litigation; (v) is not, and has not been, involved in any dispute with any taxing authority; (vi) has paid all Taxes and Other Charges; (vii) has never owned any property other the applicable Property; (viii) is not now and has not ever been a party to any lawsuit, arbitration, summons or legal proceeding; (ix) has not failed to provide Lender with complete financial statements that reflect a fair and accurate view of its financial condition; and (x) has no material contingent or actual obligations not related to the applicable Property.
(i) Prior Lender is the current holder of the Prior Loan, (ii) the Prior Loan has been indefeasibly satisfied in full on or before the date hereof, (iii) none of Borrower, Principal, nor Guarantor have any remaining liabilities or obligations in connection with the Prior Loan (other than environmental and other limited and customary indemnity obligations), (iv) Prior Lender has released all collateral and security for the Prior Loan as of the date hereof, (v) the Swap, if any, relating to the Prior Loan, has been terminated on or before the date hereof, (vi) all obligations of Borrower and Guarantor under such Swap, if any, have been satisfied in full on or before the date hereof, (vii) none of Borrower, Principal, nor Guarantor have any remaining liabilities or obligations in connection with such Swap, if any, and (viii) either no collateral or security was provided in connection with such Swap, if any, or all such collateral or security given in connection therewith has been released as of the date hereof.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects material respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all facts stated of the assumptions made with respect to Borrower and all Principal in the Insolvency Opinion. In addition, Borrower covenants and agrees with Lender that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. (ii) Borrower will have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each , and (iii) each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, that Borrower is, shall be each SPE Constituent Entity is and shall continue to be will remain a Special Purpose Entity.
(b) The representations, representations and warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) Any amendment or amendment and restatement of any of Borrower’s or any of SPE Constituent Entity’s organizational documents on or prior to the Closing Date has been accomplished in accordance with, and was permitted by, the relevant provisions of each such organizational document (as the same existed prior to such amendment or amendment and restatement).
(d) All of the stated facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respectscorrect. Borrower has and each SPE Constituent Entity have complied and will comply with, with all of the stated facts and assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower will and each SPE Constituent Entity have complied and will comply with all of the stated facts and assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which an assumption shall be is made or a fact stated in the Insolvency Opinion and any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion.
(e) Borrower and each SPE Constituent Entity hereby represents from the date of such entity’s formation (including, if applicable, since the date of formation of such entity’s predecessor by merger) to the date of this Agreement that it:
(i) has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related Party” and collectively, the “Related Parties”), except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party;
(ii) has paid all of its debts and liabilities from its assets except with respect to prior debt that has been repaid in full;
(iii) has done or caused to be done all things necessary to observe all organizational formalities applicable to it and to preserve its existence;
(iv) has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person;
(v) has not had its assets listed as assets on the financial statement of any other Person;
(vi) has filed its own tax returns (except to the extent that it has been a tax-disregarded entity not required to file tax returns under applicable law) and, if it is a corporation, has not filed a consolidated federal income tax return with any other Person;
(vii) has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related Party);
(viii) has corrected any known misunderstanding regarding its status as a separate entity;
(ix) has conducted all of its business and held all of its assets in its own name;
(x) has not identified itself or any of its Affiliates as a division or part of the other;
(xi) has maintained and utilized separate stationery, invoices and checks bearing its own name;
(xii) has not commingled its assets with those of any other Person and has held all of its assets in its own name other than with other co-borrowers as may have been permitted under cash management systems with respect to prior debt that has been repaid in full;
(xiii) has not guaranteed or become obligated for the debts of any other Person, except (A) in connection with the debt that has been repaid in full and (B) with respect to other Borrowers, in connection with this Loan;
(xiv) has not held itself out as being responsible for the debts or obligations of any other Person, except with respect to the co-borrowers in connection with this Loan or prior debt that has been repaid in full or the other Borrower in connection with this Loan;
(xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Party;
(xvi) has not pledged its assets to secure the obligations of any other Person except in connection with prior debt that has been repaid in full and no such pledge remains outstanding except with respect to the other Borrowers pursuant to the Loan Documents;
(xvii) has maintained adequate capital in light of its contemplated business operations;
(xviii) has maintained a sufficient number of employees in light of its contemplated business operations and has paid the salaries of its own employees from its own funds;
(xix) has not owned any subsidiary or any equity interest in any other entity, except for any SPE Constituent Entity that is a general partner that was formed prior to the date hereof, with respect to its interest in the relevant limited partnership;
(xx) has not incurred any indebtedness that is still outstanding other than indebtedness that is permitted under the Loan Documents; and
(xxi) has not had any of its obligations guaranteed by an Affiliate, except for guarantees that have been either released or discharged (or that will be discharged as a result of the closing of the Loan) or except for (A) the Guaranty, (B) with respect to other Borrowers pursuant to the Loan Documents, and (C) TI Guaranties; provided, however, that the obligations of the guarantors under the TI Guaranties, if any, were limited to less than $25,000,000 and the TI Guaranties arose only upon the occurrence of specific, contingent events and were limited in scope.
(f) With respect to any consents, waivers or amendments to the limited liability company agreement of any limited liability company Borrower, or limited partnership agreement of any limited partnership Borrower, that were required to effect any assignment of a limited liability company interest in such limited liability company Borrower or assignment of a partnership interest in such limited partnership Borrower, as the case may be, or for the admission of an assignee as a member of a limited liability company Borrower, or as a partner of a limited partnership Borrower, has been obtained or accomplished in accordance with such limited liability company agreement or partnership agreement, as applicable, as in effect at the time of such assignment, and that any conditions to assignment of any limited liability company interest in a limited liability company Borrower or any partnership interest in a limited partnership Borrower, as the case may be, or for the admission of an assignee as a member of a limited liability company Borrower or as a partner of a limited partnership Borrower, as applicable, have been satisfied or waived.
(g) Each Borrower that is a limited liability company has had at all times at least one member.
(h) Each Borrower that is a limited partnership has had at all times at least one general partner and one limited partner that were different Persons.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Individual Borrower hereby represents, warrants and covenantscovenants that (i) it has been since its formation, that Borrower isis now, and shall continue to be a Special Purpose Entity and (ii) each Principal (if any) has been since its formation, is now, and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount the outstanding balance of the Loan remains payable to Lender under this Agreement or any other Loan Documentunpaid.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Each Individual Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Each Individual Borrower covenants and agrees that such Individual Borrower shall provide Lender with thirty (30) days’ prior written notice prior to the removal of an Independent Director of any such Individual Borrower and/or Principal.
Appears in 1 contract
Sources: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower Borrowers hereby representsrepresent, warrants warrant and covenants, covenant that each Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects material respects. Each Borrower has complied and will comply with, and Principal has complied and each Borrower will cause Principal to comply with, all facts stated of the assumptions made with respect to Borrower and all Principal in the Insolvency Opinion. In addition, each Borrower covenants and agrees with Lender that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents Documents, including in particular any non-consolidation opinion delivered in connection with the transfer of the membership interests in Borrower to Principal pursuant to the Exchange Escrow Agreement (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. (ii) each Borrower will have complied and will comply with all of the assumptions made with respect to such Borrower and Principal in any Additional Insolvency Opinion. Each , and (iii) each entity other than Borrower Borrowers and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that Borrower, that Borrower and any Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency OpinionOpinion with respect to Borrower, Principal, Guarantor and their Affiliates, including, but not limited to, in any exhibits attached thereto, are true and correct in all material respects and all facts stated and all assumptions made with respect to Borrower, Principal, Guarantor and their Affiliates in any subsequent non-consolidation non‑consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all material respects. Borrower has complied and will comply with, and each Principal has complied and Borrower will cause each Principal to comply with, all of the assumptions made with respect to Borrower and such Principal, as applicable, in the Insolvency Opinion, in all material respects. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency OpinionOpinion in all material respects. Each entity entity, other than Borrower and each Principal of Borrower ‑50 ‑ and Lender, with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency OpinionOpinion in all material respects.
(d) Borrower covenants and agrees that Borrower shall provide Lender with not less than five (5) days’ prior written notice prior to the removal of an Independent Director or Independent Manager of Borrower and/or any Principal, provided that such removal shall only be effective, so long as Lender shall have the right to confirm that at the time of such removal, Borrower shall be replacing the same with an Independent Director or Independent Manager, as the case may be, of Borrower and/or any Principal who shall meet all of the applicable requirements set forth in this Agreement with respect to any such replacement Independent Director or Independent Manager, as the case may be, of Borrower and/or any Principal.
Appears in 1 contract
Sources: Loan Agreement (Cole Office & Industrial REIT (CCIT II), Inc.)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Borrower hereby represents, warrants and covenantscovenants that (i) such Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) its Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in including any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Each Borrower has complied and will comply with, and each Principal has complied and each Borrower will cause its Principal to comply with, all of the assumptions made with respect to each such Borrower and its Principal in the Insolvency Opinion. Each Borrower will have complied and will comply with with, and each Principal will have complied and each Borrower shall cause its Principal to comply with, all of the assumptions made with respect to each such Borrower and its Principal in any Additional Insolvency Opinion. Each entity other than Borrower Borrowers and Principals with respect to which an assumption shall be made in the Insolvency Opinion or in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in the Insolvency Opinion or any such Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will shall comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that Borrower shall provide Lender with thirty (30) days’ prior written notice prior to the removal of an Independent Director of any of Borrower and/or Principal.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until After the Total Conversion and until the Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose EntityEntity on a prospective basis.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower it in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Taubman Centers Inc)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, that Borrower is, shall be and shall continue to be each SPE Constituent Entity is a Special Purpose Entity, except as set forth on Schedule 4.1.30.
(b) The representations, representations and warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) Any amendment or amendment and restatement of any of Borrower’s or any of SPE Constituent Entity’s organizational documents on or prior to the Closing Date has been accomplished in accordance with, and was permitted by, the relevant provisions of each such organizational document (as the same existed prior to such amendment or amendment and restatement).
(d) All of the stated facts stated and all of the factual assumptions made in the Insolvency OpinionOpinion delivered on the Closing Date, including, but not limited to, in any exhibits attached thereto, are true and correct in all material respects as of the Closing Date and all facts stated and all any factual assumptions made in any subsequent non-consolidation non‑consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct correct, in all material respects, as of the date of such Additional Insolvency Opinion. Borrower has complied and will comply witheach SPE Constituent Entity have complied, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower and each SPE Constituent Entity in the Insolvency Opinion. Borrower will have complied and will comply each SPE Constituent Entity intends to comply, in all material respects, with all of the stated facts and factual assumptions made with respect to Borrower Borrower, as applicable, in any Additional Insolvency Opinion. Each entity other than Borrower and each SPE Constituent Entity with respect to which an a factual assumption shall be is made or a fact stated in the Insolvency Opinion and, in connection with any Additional Insolvency Opinion Opinion, will be made, have complied and will comply or intends to comply, in all material respects, with all of the factual assumptions made and facts stated with respect to it in the Insolvency Opinion and any such Additional Insolvency Opinion.
(e) Each assignment or transfer of limited liability company or partnership interests in Borrower and each SPE Constituent Entity by all prior members or partners of such Person to such Person’s successor member, partner or their sole member, as the case may be, and the admission of such Person’s successor member or applicable sole member, as the case may be, as a member of such Person or successor partner as a limited partner or general partner of such Person, as the case may be, were accomplished in accordance with, and were permitted by, the applicable limited liability company agreement or limited partnership agreement governing the affairs of such Person at the time of such assignment or transfer and admission, and following each such assignment and admission, such Borrower or SPE Constituent Entity was continued without dissolution; there have been at all times since the formation of each Borrower and SPE Constituent Entity at least one member or one general partner and one limited partner, as applicable, of each Borrower and SPE Constituent Entity.
(f) Any payments made pursuant to the Loan Documents to or for the benefit of any Borrower or Mezzanine Borrower shall constitute distributions to or at the discretion of the applicable equity owner of such entity.
(g) Borrower has no judgments or Liens of any nature against it except for Section 2.9 Tax liens not yet delinquent and the Permitted Encumbrances.
(h) Borrower has provided Lender with complete financial statements that reflected a fair and accurate view, in all material respects, of the entity’s financial conditions as of the date set forth therein in all material respects.
(i) With respect to each Borrower and SPE Constituent Entity, (i) such Borrower or SPE Constituent Entity is and always has been duly formed, validly existing and in good standing in the State in which it was formed and in any other jurisdictions where it is qualified to do business; (ii) such Borrower or SPE Constituent Entity is in compliance with all laws, regulations and orders applicable to such Borrower or SPE Constituent Entity in all material respects and had received all material permits necessary for such Borrower or SPE Constituent Entity to operate, unless a failure to comply with or possess the same would not materially and adversely affect the condition, financial or otherwise, of such Borrower or SPE Constituent Entity; (iii) subject to Section 4.1.4 hereof, as of the Closing Date, no Borrower or SPE Constituent Entity was aware of any pending or threatened litigation involving such Borrower or SPE Constituent Entity that, if adversely determined, would be reasonably likely to materially adversely affect the condition (financial or otherwise) of such Borrower or SPE Constituent Entity, or the condition or ownership of the property owned by such Borrower; (iv) such Borrower or SPE Constituent Entity is not involved in any dispute with any taxing authority, other than any contesting of taxes in accordance with the terms and conditions of this Agreement; (v) such Borrower has paid or has caused to be paid all real estate taxes that are due and payable with respect to its applicable Individual Property other than any such taxes which are not yet delinquent or were being contested in accordance with the terms and conditions of this Agreement; (vi) such Borrower has never owned any real property other than its applicable Individual Property and, with respect to any Previously Owned Property Borrower, the related Previously Owned Property, and such SPE Constituent Entity has never owned any real property; (vii) such Borrower or SPE Constituent Entity is not, nor has it ever been party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, would reasonably be expected to have an Individual Material Adverse Effect on the condition (financial or otherwise) of such Borrower or SPE Constituent Entity or the condition or ownership of the property owned by such Borrower or SPE Constituent Entity; and (viii) except as set forth in the environmental reports delivered to Lender for each Individual Property in connection with the closing of the Loan, the most recent Phase One environmental audit for each Individual Property recommends no action.
(j) Each Borrower and SPE Constituent Entity has no material contingent or actual obligations related to the Previously-Owned Property except (i) to the extent such obligations are (x) covered by insurance for a period not less than two (2) years following the sale of such Previously-Owned Property, or (y) subject to reimbursement from a third-party or (ii) Permitted Encumbrances (collectively, “Permitted POP Obligations”).
(k) Except as set forth in Section 4.1.30(m) hereof or the Permitted POP Obligations, Borrower has no material contingent or actual obligations not related to the Property and each SPE Constituent Entity has no material contingent or actual obligations not related to its partnership interest or limited liability company interest in the applicable Borrower.
(l) The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that except for duties to such Borrower and SPE Constituent Entity as set forth in the Organizational Documents (including duties to the member and such Borrower and SPE Constituent Entity’s creditors solely to the extent of their respective economic interests in such Borrower and such SPE Constituent Entity, but excluding (i) all other interests of the member, (ii) the interests of other Affiliates of Borrower and such SPE Constituent Entity, and (iii) the interests of any group of Affiliates of which Borrower and such SPE Constituent Entity is a part), the Independent Directors or Independent Managers shall not have any fiduciary duties to the member, any officer or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide and shall at all times during the term of the Loan provide that to the fullest extent permitted by law, including Section 18-1101(e) of the Delaware Limited Liability Company Act, an Independent Director or Independent Manager shall not be liable to Borrower, the member or any other Person bound by the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director or Independent Manager acted in bad faith or engaged in willful misconduct. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that all right, power and authority of the Independent Directors or Independent Managers shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in the applicable Loan Party’s Organizational Documents. The Organizational Documents for each Borrower and SPE Constituent Entity that is a Delaware limited liability company provide that notwithstanding any other provision of the applicable Borrower’s and/or SPE Constituent Entity’s Organizational Documents to the contrary, each Independent Director or Independent Manager, in its capacity as an Independent Director or Independent Manager, as applicable, may only act, vote or otherwise participate in those matters referred to in Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’s Organizational Documents or as otherwise specifically required by the applicable Organizational Documents, and such Independent Director’s or Independent Manager’s, as applicable, act, vote or other participation shall not be required for the validity of any action taken by the board of directors of such Borrower unless, pursuant to the provisions of Section 9(j)(iii) of the applicable Borrower’s and SPE Constituent Entity’s Organizational Documents or as otherwise specifically provided in the applicable Organizational Documents, such action would be invalid in the absence of the affirmative vote or consent of such Independent Director or Independent Manager. The Organizational Documents of each Borrower and each SPE Constituent Entity that is not a Delaware limited liability company contain terms and provisions similar to the terms and provisions set forth in this subclause (l) to the extent permitted by applicable law.
(m) Except as set forth on Schedule 4.1.30, each Borrower and each SPE Constituent Entity hereby represents with respect to itself that from the date of such Borrower’s formation to the date hereof:
(i) its business has been limited solely to (A) in the case of Borrower, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, managing, renovating, improving, financing, refinancing and operating and managing the Properties, its Previously Owned Property (if any) or its Individual Property, entering into financings and refinancings of the Property and any Previously Owned Property, and transacting any and all lawful business that was incident, necessary or appropriate to accomplish the foregoing and (B) in the case of a SPE Constituent Entity, acting as a general partner of a limited partnership Borrower or as a member of a limited liability company Borrower and transaction lawful business that is incident, necessary and appropriate to accomplish the foregoing;
(ii) reserved;
(iii) it has never owned any real property other than, in the case of Borrower, the Property or its Individual Property or Previously Owned Property (if any) and it has not engaged in any business other than as set forth in clause (i) above;
(iv) other than capital contributions and distributions permitted under the terms of its organizational documents, it has not entered into any contract or agreement with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s length transaction with an unrelated party;
(v) it has not (a) made any loans to any Person or (b) acquired or held evidence of indebtedness issued by any other Person or entity, in either of the case of (a) or (b), other than (1) extensions of credit such as security deposits made in the ordinary course of business relating to the ownership and operation of the Property, in each case made to an entity that is not an Affiliate of or subject to common ownership with such entity or (2) cash and investment grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity;
(vi) it has paid its debts and liabilities from its assets as the same have become due or such debts and liabilities have been repaid or discharged as of the date hereof;
(vii) except with respect to any matters that have been duly resolved as of the date hereof, it has observed or caused to be observed all organizational formalities that are necessary to preserve and keep in full force and effect its existence and rights (charter and statutory);
(viii) except with respect to prior financings that have been repaid or otherwise discharged, it has maintained all of its books, records, financial statements and bank accounts separate from those of any other Person and Borrower’s and SPE Constituent Entity’s assets have not been listed as assets on the financial statement of any other Person, unless (a) the financial statements of such other Person contained an appropriate notation indicating the separateness of Borrower or SPE Constituent Entity from such Person and indicating that Borrower’s or SPE Constituent Entity’s assets and credit were not available to satisfy the debts and other obligations of such Person and (b) such assets were also listed on the Borrower’s or SPE Constituent Entity’s own balance sheet. Each of Borrower and SPE Constituent Entity, to the extent applicable, has filed its own tax returns (except to the extent that it has been a disregarded entity not required to file tax returns under applicable law). Each of Borrower and SPE Constituent Entity, to the extent applicable, has maintained its books, records, resolutions and agreements as official records;
(ix) except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially-reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as its agent, it has been, and at all times has held itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing), has corrected any known misunderstanding regarding its status as a separate entity, has conducted its business in its own name, has not identified itself or any of its Affiliates as a division or part of the other and any stationery, invoices and checks maintained or utilized by Borrower and SPE Constituent Entity have been separate;
(x) it has not commingled its assets with those of any other Person, other than co-borrowers under prior loans that have been repaid in full, and has held all of its assets in its own name;
(xi) it has not guaranteed or become obligated for the debts of any other Person and has not held itself out as being responsible for the debts or obligations of any other Person, other than co-borrowers or guarantors under prior financings that have been repaid or otherwise discharged or as otherwise imposed by law;
(xii) it has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services perform
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Borrower hereby represents, warrants and covenants, covenants that such Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Each Borrower has complied and will comply with all facts stated of the assumptions made with respect to such Borrower in the Insolvency Opinion.
(d) Each Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) each Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to each Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than any Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that each SPE Entity has been since its formation, that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower Each SPE Entity has complied and will comply with, with all of the assumptions made with respect to Borrower such SPE Entity in the Insolvency Opinion. Borrower Each SPE Entity will have complied and will comply with all of the assumptions made with respect to Borrower such SPE Entity in any Additional Insolvency Opinion. Each entity other than Borrower any SPE Entity with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
(c) Borrower hereby represents with respect to each of OpBiz and MezzCo that such SPE Entity:
(i) is and always has been duly formed, validly existing, and in good standing in the state of its formation and in all other jurisdictions where it is qualified to do business;
(ii) has no judgments or liens of any nature against it except for tax liens not yet due;
(iii) is in compliance with all laws, regulations, and orders applicable to it and, except as otherwise disclosed in this Agreement, has received all permits necessary for it to operate;
(iv) is not involved in any dispute with any taxing authority;
(v) has paid all taxes which it owes;
(vi) has never owned any real property other than, with respect to OpBiz, the Property and has never engaged in any business other than the direct or indirect ownership and operation of the Property;
(vii) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that resulted in a judgment against it that has not been paid in full; and
(viii) has no material contingent or actual obligations not related to the Property.
Appears in 1 contract
Sources: Loan Agreement (Bh Re LLC)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Borrower has complied and will comply with all facts stated of the assumptions made with respect to Borrower in the Insolvency Opinion.
(d) Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full and the obligations under the Subordinate Mortgage Loan have been paid in full, each Borrower hereby represents, warrants and covenants, covenants that such Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Each Borrower has complied and will comply with all facts stated of the assumptions made with respect to such Borrower in the Insolvency Opinion.
(d) Each Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) each Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to each Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than any Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
(e) Borrowers hereby agree to provide Lender with at least five (5) Business Days’ prior written notice prior to the effectiveness of any change (and each change) in any Independent Director or Independent Manager.
Appears in 1 contract
Sources: Loan Agreement (Bref Hr, LLC)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity, and (ii) any Principal is, shall be and shall continue to be a Special Purpose Entity (it being acknowledged that, as of the Closing Date, there is no Principal).
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Sabre Corp)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity (Lender acknowledges that the single purpose provisions contained in the organizational documents of Borrower and Principal satisfy the requirements of a Special Purpose Entity).
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all facts stated and all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will comply with all of the assumptions made with respect to Borrower and Principal in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower in any Additional Insolvency Opinion. Each entity other than Affiliate of Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that each of Borrower and any Special Purpose Equityholder is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the factual assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any factual assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, with all of the factual assumptions made with respect to Borrower it in the Insolvency Opinion. Borrower will have complied and will comply with all of the factual assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an a factual assumption has been made in the Insolvency Opinion or shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the factual assumptions made with respect to it in any Additional Insolvency Opinionsuch opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, each Borrower hereby represents, warrants and covenants, covenants that each Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.305.1.39
(a) shall survive for so long as any amount portion of the Debt remains payable to Lender under this Agreement Agreement, the Note or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents or a Substitution or Transfer of any Collateral Property (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall at all times be true and correct in all respects. Each Borrower has complied and will comply with, with all of the assumptions made with respect to Borrower it in the Insolvency Opinion. Each Borrower will have complied and will comply with all of the assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than a Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity and (ii) unless Borrower is a corporation or an entity of the type described in subsection (x) under the definition of Special Purpose Entity.
(b) , Principal is, shall be and shall continue to be a Special Purpose Entity. The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(cb) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , and Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower Principal will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(c) Borrower covenants and agrees that Borrower shall provide Lender with five (5) days’ prior written notice prior to the removal and replacement of any Independent Director.
Appears in 1 contract
Sources: Loan Agreement (Amerco /Nv/)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenants, covenants that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.304.1.20
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated Any and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true stated facts and correct in all respects and all facts stated and all assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, including any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied , and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the stated facts and assumptions made with respect to Borrower it in any Additional Insolvency Opinion. Each entity other than Borrower with respect to which an assumption shall be is made or a fact stated in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made and facts stated with respect to it in any such Insolvency Opinion. Borrower covenants that in connection with any Additional Insolvency OpinionOpinion delivered in connection with this Agreement it shall provide an updated certification regarding compliance with the facts and assumptions made therein.
(d) Borrower covenants and agrees that no resignation or removal of any Independent Director, and no appointment of any successor Independent Director, shall be effective until Lender shall have consented in writing to such appointment (which consent shall be deemed given if the successor Independent Director is provided by a nationally recognized professional services provider and otherwise shall not be unreasonably withheld, conditioned or delayed), provided however, that no Independent Director shall resign or be removed, and no successor Independent Director shall be appointed, without in each case at least thirty (30) days’ prior written notice prior to Lender.
Appears in 1 contract
Sources: Mezzanine Loan Agreement
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower has been, that Borrower is, shall be and shall continue to be a Special Purpose Entity, and (ii) the Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “"Additional Insolvency Opinion”"), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower hereby represents, warrants and covenants that:
(i) Borrower has complied and will comply with, and each Principal has complied and Borrower will cause each Principal to comply with, all of the assumptions made with respect to Borrower or the Principal in the Insolvency Opinion. ; (ii) Borrower will have complied and will comply with all of the assumptions made with respect to Borrower or the Principal in any Additional Insolvency Opinion. Each ; and (iii) each entity other than Borrower or the Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Sources: Loan Agreement (Pennsylvania Real Estate Investment Trust)
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) each Individual Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, (ii) each Operating Lessee is, shall be and shall continue to be a Special Purpose Entity and (iii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a4.1.30(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Operating Lessee and Principal have complied and Borrower will cause Operating Lessee and Principal to comply with, all of the assumptions made with respect to Borrower Borrower, Operating Lessee and Principal in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to Borrower Borrower, Operating Lessee and Principal in any Additional Insolvency Opinion. Each entity other than Borrower Borrower, Operating Lessee and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full and the obligations under the First Mezzanine Loan Documents, the Second Mezzanine Loan Documents and the Third Mezzanine Loan Documents have been paid in full, each Borrower hereby represents, warrants and covenantscovenants that such Borrower has been, that Borrower is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) hereof shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects respects. Each Borrower has complied and will comply with all facts stated of the assumptions made with respect to such Borrower in the Insolvency Opinion.
(d) Each Borrower hereby covenants and all agrees that (i) any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. , (ii) each Borrower has complied and will comply with, all of the assumptions made with respect to Borrower in the Insolvency Opinion. Borrower will have complied and will comply with all of the assumptions made with respect to each Borrower in any Additional Insolvency Opinion. Each entity , and (iii) each Person other than any Borrower with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
(e) Borrowers hereby agree to provide Lender with at least five (5) Business Days’ prior written notice prior to the effectiveness of any change (and each change) in any Independent Director or Independent Manager.
Appears in 1 contract
Special Purpose Entity/Separateness. (a) Until the Total Debt has been paid in full, Borrower hereby represents, warrants and covenantscovenants that (i) Borrower is, that Borrower shall be and shall continue to be a Special Purpose Entity, and (ii) Principal is, shall be and shall continue to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in Section 4.1.30
(a) shall survive for so long as any amount remains payable to Lender under this Agreement or any other Loan Document.
(c) All of the facts stated and all of the assumptions made in the Insolvency Opinion, including, but not limited to, in any exhibits attached thereto, are true and correct in all respects material to the opinions set forth therein and all facts stated and all any assumptions made in any subsequent non-consolidation opinion required to be delivered in connection with the Loan Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, will have been and shall be true and correct in all respects. Borrower has complied and will comply with, and Principal has complied and Borrower will cause Principal to comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency Opinion. Borrower will will, and shall cause Principal to, have complied and will comply with all of the assumptions made with respect to Borrower and Principal in any Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
Appears in 1 contract