Single Purpose Borrower hereby represents and warrants to, and covenants with, Lender that as of the date hereof and until such time as the Debt shall be paid in full:
(1) Propco Borrower does not own and will not own any asset or property other than (i) the Property, and (ii) incidental personal property necessary for the ownership or operation of the Property and (2) Opco Borrower does not own and will not own any asset or property other than the personalty and other assets owned by it necessary for the operation of the Property.
(1) Propco Borrower will not engage in any business other than the ownership, management and operation of the Property and (2) Opco Borrower will not engage in any business other than the management and operation of the Property, and each Borrower will conduct and operate its business as presently conducted and operated.
(c) Borrower will not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party, except upon terms and conditions that are commercially reasonable (taking into account all facts and circumstances) and either substantially similar to those that would be available on an aim’s-length basis with third parties other than any such party or a capital contribution or distribution.
(d) Borrower has not incurred, and will not incur any Indebtedness other than the Debt, (ii) unsecured trade payables and operational debt not evidenced by a note and (iii) Indebtedness incurred in the financing of equipment and other personal property used on the Property; provided that any Indebtedness incurred pursuant to subclauses (ii) and (iii) shall be (x) not in excess of 5% of the outstanding principal amount of the Loan in the aggregate, (y) paid not more than sixty (60) days from the date incurred as to the matters in subclause (ii) above and not more than sixty (60) days from the date due as to the matters in subclause (iii) above and (z) incurred in the ordinary course of business. No Indebtedness other than the Debt may be secured (subordinate or pari passu) by the Property other than Indebtedness of the type described in and subject to the requirements of clause (iii) of this clause (d).
(e) Except as expressly contemplated by the Loan Documents with respect to the other Borrower and the Cross Borrower, Borrower has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party), and shall not acquire obligations or securities of any of its Affiliates.
(f) Borrower is and will remain solvent and Borrower will pay all of its debts and liabilities (including, as applicable, a fairly allocated portion of shared personnel and overhead expenses) only from its own assets and as the same shall become due.
(g) Borrower has done or caused to be done and will do all things necessary to observe organizational formalities applicable to Borrower and preserve Borrower’s existence, and Borrower will not, nor will Borrower permit any constituent party to amend, modify or otherwise change the partnership certificate, partnership agreement, articles of incorporation and bylaws, operating agreement, trust or other organizational documents of Borrower without the prior consent of Lender in any manner that (i) violates or makes such organizational documents inconsistent with the single purpose covenants set forth in this Section 3.1.24, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’s consent.
(h) Borrower will maintain all of its books, records, financial statements (it being acknowledged that the agent under the Cash Management Agency Agreement shall be continuously able to produce separate balance sheets of the Borrowers) and (except as contemplated in the Cash Management Agency Agreement) bank accounts separate from those of its Affiliates and from those of any other Person. Borrower’s assets will not be listed as assets on the financial statement of any other Person, provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements (and/or in Annual Reports on Form 10-K filed with U.S. Securities and Exchange Commission in which such financial statements are contained) to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (ii) such assets are continuously able to be listed on Borrower’s own separate balance sheet. Borrower will file its own tax returns (to the extent Borrower is required to file tax returns). Borrower shall maintain its books, records, resolutions and agreements as official records.
(i) Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks bearing its own name (except with respect to payments or communications made on behalf of the Borrower by the counterparty to the Cash Management Agency Agreement, in which event, such counterparty shall nevertheless identify the Borrower as the party on whose behalf the payment or communication is being made).
(j) Borrower will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of Borrower.
(l) Except as expressly contemplated by the Loan Documents and the Cash Management Agency Agreement, Borrower will not commingle the funds or other assets of Borrower with those of any Affiliate or constituent party or any other Person, and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.
(n) Except as expressly contemplated by the Loan Documents with respect to the other Borrower and the Cross Borrower, Borrower will not guarantee or become obligated for the debts of any other Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy or hold out its credit as being available to satisfy the debts or obligations of any other Person.
(i) If Borrower is a limited partnership or a limited liability company, (other than a single member limited liability company that satisfies all of the requirements of Section 3.1.24(o)(ii)), each general partner or managing member (each, an “SPC Party”) of Borrower shall be a corporation or single member limited liability company that satisfies all of the requirements of Section 3.1.24(o)(ii) whose sole asset is a direct interest in Borrower of at least 0.5% (or 0.1% if Borrower is an entity formed under the laws of Delaware) and each such SPC Party will at all times comply with each of the representations, warranties, and covenants contained in this Section 3.1.24 as if such representation, warranty or covenant was made directly by such SPC Party (substituting the term “SPC Party” for the term “Borrower” throughout) and will cause Borrower to comply with this Section 3.1.24 (except for subsections (a), (b), (d), (n) and (x)). Upon the withdrawal or the disassociation of an SPC Party from Borrower, Borrower shall immediately appoint a new SPC Party whose constituent documents are substantially similar to those of the withdrawing or disassociating SPC Party and deliver a new non-consolidation opinion to the Rating Agency or Rating Agencies, as applicable, with respect to the new SPC Party and its equity owners. If Borrower is a limited partnership, Borrower shall have at least one general partner. If Borrower is a limited liability company (other than a single-member limited liability company that satisfies all of the requirements of Section 3.1 .24(o)(ii)), Borrower shall have at least one (1) managing member. An SPC Party shall be organized for the sole purpose of owning a direct interest in the Borrower, shall own no other interests in any entity, and shall not incur indebtedness except as it may be liable for the debts of the Borrower in its capacity as general partner of the Borrower.
(ii) If Borrower is a single member limited liability company (“single member limited liability company” meaning a limited liability company having only one equity member), Borrower shall be a limited liability company organized under the laws of Delaware and shall have either (A) two (2) non-equity members or (B) at least two springing members, one of which, upon the dissolution of such sole member or the withdrawal or the disassociation of the sole member from Borrower, shall immediately become the sole member of Borrower, and the other of which shall become the sole member of Borrower if the first such springing member no longer is available to serve as such sole member.
(p) Borrower or its SPC Party shall at all times cause there to be at least two duly appointed Independent Directors, who are provided by a nationally recognized company that provides professional independent directors, of each SPC Party and of Borrower if Borrower is a single member limited liability company. As used herein, “Independent Director” shall mean a natural person serving as a director of a corporation or manager of a limited liability company who is not at the time of initial appointment, or at any time while serving, and has not been at any time during the preceding five (5) years: (a) a stockholder or director (with the exception of serving as the Independent Director of Borrower or any SPC Party that is an SPC Party or managing member of Borrower), trustee, officer, employee, partner, member, attorney or counsel of SPC Party, Borrower or any affiliate of either of them; (b) a creditor, customer, supplier or other person who derives any of its purchases or revenues from its activities with SPC Party, Borrower or any affiliate of either of them; (c) a person or other entity controlling or under common control with any Person excluded from serving as Independent Director under subparagraph (a) or (b); or (d) a member of the immediate family of any Person excluded from serving as Independent Director under subparagraph (a) or (b). As used in this definition, the term “affiliate” means any person controlling, under common control with, or controlled by the person in question; and the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a person or entity, whether through ownership of voting securities, by contract or otherwise. A natural person who satisfies the foregoing definition other than subparagraph (b) shall not be disqualified from serving as an Independent Director if such individual has been provided by a nationally-recognized company that provides professional independent directors. A natural person who otherwise satisfies the foregoing definition except for being the Independent Director of a “special purpose entity” affiliated with Borrower or SPC Party shall not be disqualified from serving as an Independent Director of Borrower or SPC Party if such “special purpose entity” does not own a direct or indirect equity interest in Borrower or in any co-borrower of Borrower and if such individual is an independent director provided by a nationally-recognized company that provides professional independent directors. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities substantially similar to those set forth in Section 3.1.24 of this Agreement.
