Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each of the Borrowers hereby represents, warrants and covenants as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in full, that absent express advance written waiver from Lender, which may be withheld in Lender’s sole discretion: (A) Each of the Borrower Parties shall not, without the prior unanimous written consent of its board of directors, including its two (2) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent to the institution of bankruptcy or insolvency proceedings against it; file a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due; (B) Each of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower Party, as applicable; (C) Each of the Borrower Parties except for capital contributions and distributions properly reflected on the books and records of such entity, shall not enter 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 AT Party” and collectively, the “Related AT 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; (D) Except as contemplated or permitted by the Loan Documents, each of the Borrower Parties shall pay all of its debts and liabilities from its own assets; (E) Each of the Borrower Parties shall cause to be done all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence; (F) Each of the Borrower Parties shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Person, or shall hire the Manager to maintain such books and records; (G) Each of the Borrower Parties shall be and shall hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party); (H) Each of the Borrower Parties shall correct any known misunderstanding regarding its status as a separate entity; (I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name; (J) Each of the Borrower Parties shall not identify itself or any of its Affiliates as a division or part of the other; (K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to the Borrower Parties, each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, and shall hold all of its funds or other assets in its own name; (L) Each of the Borrower Parties shall not guaranty or become obligated for the debts of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties; (M) Each of the Borrower Parties shall not hold itself or its credit out as being responsible for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties; (N) Each of the Borrower Parties shall allocate 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 AT Party; (O) Each of the Borrower Parties shall not pledge its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties; (P) Each of the Borrower Parties shall maintain adequate capital in light of its contemplated business operations; (Q) Each of the Borrower Parties shall not incur any indebtedness other than indebtedness that is permitted under the Loan Documents; (R) Except with respect to (i) SpectraSite, LLC’s guarantee of Asset Sub II’s obligations under the AT&T Sublease and (ii) guarantees that are expressly contemplated or permitted by the Loan Documents, none of the Borrower Parties shall have any of its obligations guaranteed by an Affiliate;
Appears in 2 contracts
Samples: Loan and Security Agreement (American Tower Corp /Ma/), Loan and Security Agreement (American Tower Corp /Ma/)
Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each Each of the Borrowers hereby represents, warrants and covenants as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in fullfull on behalf of itself, and its related Borrower Parties, that absent express advance written waiver from Lender, which may be withheld in Lender’s 's sole discretion, that each Borrower Party:
(A) Each of Except for properties, or interests therein, which the Borrower Parties shall notBorrowers have sold and for which the Borrowers have no continuing obligations or liabilities, without the prior unanimous written consent of its board of directorshas not owned, including its two and does not own and will not own any assets other than (2i) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent with respect to the institution of bankruptcy or insolvency proceedings against it; file a petition seekingBorrowers, the Properties (including incidental personal property necessary for the operation thereof and proceeds therefrom), or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent (ii) with respect to the appointment of a receiverMember and the Borrowers, liquidator, assignee, trustee, sequestrator direct or indirect ownership interests in the Borrowers or such incidental assets as are necessary to enable it to discharge its obligations with respect to the Borrowers (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due"Ownership Interests");
(B) Each has not, and is not, engaged and will not engage in any business, directly or indirectly, other than the ownership, management and operation of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower PartyProperties or the Ownership Interests, as applicable;
(C) Each of the Borrower Parties except for capital contributions has not entered into, and distributions properly reflected on the books and records of such entity, shall will not enter into into, any contract or agreement with any of its Affiliatespartner, constituentsmember, shareholder, trustee, beneficiary, principal or owners, or any guarantors of any of its obligations or any Affiliate of any of Borrower Party (other than the foregoing (individually, a “Related AT Party” and collectively, the “Related AT Parties”), other Borrowers) except upon terms and conditions that are commercially reasonable intrinsically fair and substantially similar to those that would be available in on an arm’sarm's-length transaction basis with an unrelated partythird parties other than such Affiliate (including the Management Agreement);
(D) Except has not incurred any debt (other than among the Borrowers) that remains outstanding as contemplated of Closing and will not incur any debt, secured or permitted by unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Loan DocumentsObligations, each of the Borrower Parties shall pay all of its debts and liabilities from its own assets(ii) Permitted Indebtedness;
(E) Each has not made any loans or advances to any Person that remains outstanding as of Closing and will not make any loan or advances to any Person (including any of its Affiliates, other than among the other Borrowers), and has not acquired and will not acquire obligations or securities of any of its Affiliates other than the other Borrower Parties Parties;
(F) is and reasonably expects to remain solvent and pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall cause become due;
(G) has done or caused to be done and will do all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence, and will not, nor will any partner, member, shareholder, trustee, beneficiary, or principal amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement, or other organizational documents in any manner with respect to the matters set forth in this Article IX;
(FH) Each has continuously maintained, and shall continuously maintain, its existence and be qualified to do business in all states necessary to carry on its business, specifically including in the case of each Borrower, the state where its Properties are located;
(I) has conducted and operated, and will conduct and operate, its business as presently contemplated with respect to the ownership of the Borrower Parties shall maintain all of its booksProperties, recordsor the Ownership Interests, financial statements as applicable;
(J) has maintained, and will maintain, books and records and bank accounts (other than bank accounts established hereunder or under the Cash Management Agreement, or established by Manager pursuant to the Management Agreement) separate from those of its partners, members, shareholders, trustees, beneficiaries, principals, Affiliates, and any other Person, or shall hire Person (other than the Manager to other Borrowers) and will maintain such books and recordsseparate financial statements except that it may also be included in consolidated financial statements of its Affiliates;
(GK) Each of the Borrower Parties shall be has at all times held, and shall hold will continue to hold, itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party);
(H) Each of its partners, members, shareholders, trustees, beneficiaries, principals and Affiliates, and any Affiliates of any of the Borrower Parties shall same), and not as a department or division of any Person (other than the other Borrowers) and will correct any known misunderstanding misunderstandings regarding its status existence as a separate legal entity;
(I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name;
(J) Each of the Borrower Parties shall not identify itself or any of its Affiliates as a division or part of the other;
(K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to the Borrower Parties, each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, and shall hold all of its funds or other assets in its own name;
(L) Each has paid, and will pay, the salaries of the Borrower Parties shall not guaranty or become obligated for the debts of any other Personits own employees, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesif any;
(M) Each of the Borrower Parties shall not hold itself or its credit out as being responsible has allocated, and will continue to allocate, fairly and reasonably any overhead for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesshared office space;
(N) Each of the Borrower Parties shall allocate fairly has used, and reasonably any overhead expenses that have been shared will continue to use, its own stationery, invoices and checks (other than those Borrowers who are expressly permitted to use, along with an Affiliateother Borrowers only, including paying for office space common stationery, invoices and services performed by any employee of an Affiliate or Related AT Partychecks);
(O) Each of the Borrower Parties shall not pledge has filed, and will continue to file, its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof own tax returns with respect to the Borrower Partiesitself (or consolidated tax returns, if applicable) as may be required under applicable law;
(P) Each of the Borrower Parties shall reasonably expects to maintain adequate capital for its obligations in light of its contemplated business operations;
(Q) Each of the Borrower Parties shall has not incur any indebtedness other than indebtedness that is permitted under the Loan Documentssought, acquiesced in, or suffered or permitted, and will not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(R) Except will not enter into any transaction of merger or consolidation, sell all or substantially all of its assets, or acquire by purchase or otherwise all or substantially all of the business or assets of, or any stock or beneficial ownership of, any Person;
(S) has not commingled or permitted to be commingled, and will not commingle or permit to be commingled, its funds or other assets with those of any other Person (other than, with respect to the Borrowers, each other Borrower, or as may be held by Manager, as agent, for each Borrower pursuant to the terms of the Management Agreement);
(iT) SpectraSitehas and will maintain its assets in such a manner that it is not costly or difficult to segregate, LLC’s ascertain or identify its individual assets from those of any other Person other than the other Borrowers;
(U) does not and will not hold itself out to be responsible for the debts or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection with any obligation of any other Person (other than the other Borrowers) that remains outstanding, and will not guarantee or otherwise become liable on or in connection with any obligation (other than the Obligations) of Asset Sub II’s obligations under any other Person (other than the AT&T Sublease and other Borrowers) that remains outstanding;
(iiW) guarantees that are expressly contemplated or permitted by has not held, and, except for funds deposited into the Accounts in accordance with the Loan Documents, none shall not hold, title to its assets other than in its name;
(X) shall comply in all material respects with all of the Borrower Parties shall have any of assumptions, statements, certifications, representations, warranties and covenants regarding or made by it contained in or appended to the nonconsolidation opinion delivered pursuant hereto;
(Y) has conducted, and will continue to conduct, its obligations guaranteed by an Affiliate;business in its own name; and
(Z) has observed, and will continue to observe, all corporate, limited liability company, or limited partnership, as applicable, formalities.
Appears in 1 contract
Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each of the The Borrowers hereby representsrepresent, warrants warrant and covenants covenant as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in full, that absent express advance written waiver from Lender, which may be withheld in Lender’s 's sole discretion, that each Borrower Party:
(A) Each of Except for properties, or interests therein, which the Borrower Parties shall notBorrowers have sold and for which the Borrowers have no continuing obligations or liabilities, without the prior unanimous written consent of its board of directorshas not owned, including its two and does not own and will not own any assets other than (2i) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent with respect to the institution of bankruptcy or insolvency proceedings against it; file a petition seekingBorrowers, the Properties (including incidental personal property necessary for the operation thereof and proceeds therefrom), or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent (ii) with respect to the appointment of a receiverMember and the Borrowers, liquidator, assignee, trustee, sequestrator direct or indirect ownership interests in the Borrowers or such incidental assets as are necessary to enable it to discharge its obligations with respect to the Borrowers (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due"Ownership Interests");
(B) Each has not, and is not, engaged and will not engage in any business, directly or indirectly, other than the ownership, management and operation of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower PartyProperties or the Ownership Interests, as applicable, and acquisition of the Acquisition Properties;
(C) Each of the Borrower Parties except for capital contributions has not entered into, and distributions properly reflected on the books and records of such entity, shall will not enter into into, any contract or agreement with any of its Affiliatespartner, constituentsmember, shareholder, trustee, beneficiary, principal or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related AT Party” and collectively, the “Related AT Parties”), Borrower Party except upon terms and conditions that are commercially reasonable intrinsically fair and substantially similar to those that would be available in on an arm’sarm's-length transaction basis with an unrelated partythird parties other than such Affiliate (including the Management Agreement);
(D) Except has not incurred any debt (other than among the Borrowers) that remains outstanding as contemplated of Closing and will not incur any debt, secured or permitted by unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Loan DocumentsObligations, each of the Borrower Parties shall pay all of its debts and liabilities from its own assets(ii) Permitted Indebtedness;
(E) Each has not made any loans or advances to any Person that remains outstanding as of Closing and will not make any loan or advances to any Person (including any of its Affiliates, other than among the Borrowers), and has not acquired and will not acquire obligations or securities of any of its Affiliates other than the other Borrower Parties Parties;
(F) is and reasonably expects to remain solvent and pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall cause become due;
(G) has done or caused to be done and will do all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence, and will not, nor will any partner, member, shareholder, trustee, beneficiary, or principal amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement, or other organizational documents in any manner with respect to the matters set forth in this Article IX;
(FH) Each has continuously maintained, and shall continuously maintain, its existence and be qualified to do business in all states necessary to carry on its business, specifically including in the case of each Borrower, the state where its Properties are located;
(I) has conducted and operated, and will conduct and operate, its business as presently contemplated with respect to the ownership of the Borrower Parties shall maintain all of its booksProperties, recordsor the Ownership Interests, financial statements as applicable;
(J) has maintained, and will maintain, books and records and bank accounts (other than bank accounts established hereunder, or established by Manager pursuant to the Management Agreement) separate from those of its partners, members, shareholders, trustees, beneficiaries, principals, Affiliates, and any other Person, or shall hire Person (other than the Manager to other Borrowers) and will maintain such books and recordsseparate financial statements except that it may also be included in consolidated financial statements of its Affiliates;
(GK) Each of the Borrower Parties shall be has at all times held, and shall hold will continue to hold, itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party);
(H) Each of its partners, members, shareholders, trustees, beneficiaries, principals and Affiliates, and any Affiliates of any of the Borrower Parties shall same), and not as a department or division of any Person (other than the other Borrowers) and will correct any known misunderstanding misunderstandings regarding its status existence as a separate legal entity;
(I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name;
(J) Each of the Borrower Parties shall not identify itself or any of its Affiliates as a division or part of the other;
(K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to the Borrower Parties, each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, and shall hold all of its funds or other assets in its own name;
(L) Each has paid, and will pay, the salaries of the Borrower Parties shall not guaranty or become obligated for the debts of any other Personits own employees, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesif any;
(M) Each of the Borrower Parties shall not hold itself or its credit out as being responsible has allocated, and will continue to allocate, fairly and reasonably any overhead for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesshared office space;
(N) Each of the Borrower Parties shall allocate fairly has used, and reasonably any overhead expenses that have been shared will continue to use, its own stationery, invoices and checks (other than those Borrowers who are expressly permitted to use, along with an Affiliateother Borrowers only, including paying for office space common stationary, invoices and services performed by any employee of an Affiliate or Related AT Partychecks);
(O) Each of the Borrower Parties shall not pledge has filed, and will continue to file, its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof own tax returns with respect to the Borrower Partiesitself (or consolidated tax returns, if applicable) as may be required under applicable law;
(P) Each of the Borrower Parties shall reasonably expects to maintain adequate capital for its obligations in light of its contemplated business operations;
(Q) Each of the Borrower Parties shall has not incur any indebtedness other than indebtedness that is permitted under the Loan Documentssought, acquiesced in, or suffered or permitted, and will not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(R) Except will not enter into any transaction of merger or consolidation, sell all or substantially all of its assets, or acquire by purchase or otherwise all or substantially all of the business or assets of, or any stock or beneficial ownership of, any Person other than in connection with an Acquisition;
(S) has not commingled or permitted to be commingled, and will not commingle or permit to be commingled, its funds or other assets with those of any other Person (other than, with respect to the Borrowers, each other Borrower, or as may be held by Manager, as agent, for each Borrower pursuant to the terms of the Management Agreement);
(iT) SpectraSitehas and will maintain its assets in such a manner that it is not costly or difficult to segregate, LLC’s ascertain or identify its individual assets from those of any other Person;
(U) does not and will not hold itself out to be responsible for the debts or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection with any obligation of any other Person (other than the other Borrowers) that remains outstanding, and will not guarantee or otherwise become liable on or in connection with any obligation (other than the Obligations) of Asset Sub II’s obligations under any other Person (other than the AT&T Sublease and other Borrowers) that remains outstanding;
(iiW) guarantees that are expressly contemplated or permitted by has not held, and, except for funds deposited into the Accounts in accordance with the Loan Documents, none shall not hold, title to its assets other than in its name;
(X) shall comply in all material respects with all of the Borrower Parties shall have any of assumptions, statements, certifications, representations, warranties and covenants regarding or made by it contained in or appended to the nonconsolidation opinion delivered pursuant hereto;
(Y) has conducted, and will continue to conduct, its obligations guaranteed by an Affiliate;business in its own name; and
(Z) has observed, and will continue to observe, all corporate, limited liability company, or limited partnership, as applicable, formalities.
Appears in 1 contract
Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each of the The Borrowers hereby representsrepresent, warrants warrant and covenants covenant as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in full, that absent express advance written waiver from Lender, which may be withheld in Lender’s 's sole discretion, that each Borrower Party:
(A) Each of Except for properties, or interests therein, which the Borrower Parties shall notBorrowers have sold and for which the Borrowers have no continuing obligations or liabilities, without the prior unanimous written consent of its board of directorshas not owned, including its two and does not own and will not own any assets other than (2i) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent with respect to the institution of bankruptcy or insolvency proceedings against it; file a petition seekingBorrowers, the Properties (including incidental personal property necessary for the operation thereof and proceeds therefrom), or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent (ii) with respect to the appointment of a receiverMember and the Borrowers, liquidator, assignee, trustee, sequestrator direct or indirect ownership interests in the Borrowers or such incidental assets as are necessary to enable it to discharge its obligations with respect to the Borrowers (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due"OWNERSHIP INTERESTS");
(B) Each has not, and is not, engaged and will not engage in any business, directly or indirectly, other than the ownership, management and operation of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower PartyProperties or the Ownership Interests, as applicable;
(C) Each of the Borrower Parties except for capital contributions has not entered into, and distributions properly reflected on the books and records of such entity, shall will not enter into into, any contract or agreement with any of its Affiliatespartner, constituentsmember, shareholder, trustee, beneficiary, principal or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related AT Party” and collectively, the “Related AT Parties”), Borrower Party except upon terms and conditions that are commercially reasonable intrinsically fair and substantially similar to those that would be available in on an arm’sarm's-length transaction basis with an unrelated partythird parties other than such Affiliate (including the Management Agreement);
(D) Except has not incurred any debt (other than among the Borrowers) that remains outstanding as contemplated of Closing and will not incur any debt, secured or permitted by unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Loan DocumentsObligations, each of the Borrower Parties shall pay all of its debts and liabilities from its own assets(ii) Permitted Indebtedness;
(E) Each has not made any loans or advances to any Person that remains outstanding as of Closing and will not make any loan or advances to any Person (including any of its Affiliates, other than among the Borrowers), and has not acquired and will not acquire obligations or securities of any of its Affiliates other than the other Borrower Parties Parties;
(F) is and reasonably expects to remain solvent and pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall cause become due;
(G) has done or caused to be done and will do all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence, and will not, nor will any partner, member, shareholder, trustee, beneficiary, or principal amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement, or other organizational documents in any manner with respect to the matters set forth in this Article IX;
(FH) Each has continuously maintained, and shall continuously maintain, its existence and be qualified to do business in all states necessary to carry on its business, specifically including in the case of each Borrower, the state where its Properties are located;
(I) has conducted and operated, and will conduct and operate, its business as presently contemplated with respect to the ownership of the Borrower Parties shall maintain all of its booksProperties, recordsor the Ownership Interests, financial statements as applicable;
(J) has maintained, and will maintain, books and records and bank accounts (other than bank accounts established hereunder, or established by Manager pursuant to the Management Agreement) separate from those of its partners, members, shareholders, trustees, beneficiaries, principals, Affiliates, and any other Person, or shall hire Person (other than the Manager to other Borrowers) and will maintain such books and recordsseparate financial statements except that it may also be included in consolidated financial statements of its Affiliates;
(GK) Each of the Borrower Parties shall be has at all times held, and shall hold will continue to hold, itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party);
(H) Each of its partners, members, shareholders, trustees, beneficiaries, principals and Affiliates, and any Affiliates of any of the Borrower Parties shall same), and not as a department or division of any Person (other than the other Borrowers) and will correct any known misunderstanding misunderstandings regarding its status existence as a separate legal entity;
(I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name;
(J) Each of the Borrower Parties shall not identify itself or any of its Affiliates as a division or part of the other;
(K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to the Borrower Parties, each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, and shall hold all of its funds or other assets in its own name;
(L) Each has paid, and will pay, the salaries of the Borrower Parties shall not guaranty or become obligated for the debts of any other Personits own employees, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesif any;
(M) Each of the Borrower Parties shall not hold itself or its credit out as being responsible has allocated, and will continue to allocate, fairly and reasonably any overhead for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesshared office space;
(N) Each of the Borrower Parties shall allocate fairly has used, and reasonably any overhead expenses that have been shared with an Affiliatewill continue to use, including paying for office space its own stationery, invoices and services performed by any employee of an Affiliate or Related AT Partychecks;
(O) Each of the Borrower Parties shall not pledge has filed, and will continue to file, its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof own tax returns with respect to the Borrower Partiesitself (or consolidated tax returns, if applicable) as may be required under applicable law;
(P) Each of the Borrower Parties shall reasonably expects to maintain adequate capital for the its obligations in light of its contemplated business operations;
(Q) Each of the Borrower Parties shall has not incur any indebtedness other than indebtedness that is permitted under the Loan Documentssought, acquiesced in, or suffered or permitted, and will not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(R) Except will not enter into any transaction of merger or consolidation, sell all or substantially all of its assets, or acquire by purchase or otherwise all or substantially all of the business or assets of, or any stock or beneficial ownership of, any Person;
(S) has not commingled or permitted to be commingled, and will not commingle or permit to be commingled, its funds or other assets with those of any other Person (other than, with respect to the Borrowers, each other Borrower, or as may be held by Manager, as agent, for each Borrower pursuant to the terms of the Management Agreement);
(iT) SpectraSitehas and will maintain its assets in such a manner that it is not costly or difficult to segregate, LLC’s ascertain or identify its individual assets from those of any other Person;
(U) does not and will not hold itself out to be responsible for the debts or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection with any obligation of any other Person that remains outstanding, and will not guarantee or otherwise become liable on or in connection with any obligation (other than the Obligations) of Asset Sub II’s obligations under any other Person that remains outstanding;
(W) has not held, and, except for funds deposited into the AT&T Sublease and (ii) guarantees that are expressly contemplated or permitted by Accounts in accordance with the Loan Documents, none shall not hold, title to its assets other than in its name;
(X) shall comply in all material respects with all of the Borrower Parties shall have any of assumptions, statements, certifications, representations, warranties and covenants regarding or made by it contained in or appended to the nonconsolidation opinion delivered pursuant hereto;
(Y) has conducted, and will continue to conduct, its obligations guaranteed by an Affiliate;business in its own name; and
(Z) has observed, and will continue to observe, all corporate, limited liability company, or limited partnership, as applicable, formalities.
Appears in 1 contract
Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each of the Borrowers hereby represents, warrants and covenants as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in full, that absent express advance written waiver from Lender, which may be withheld in Lender’s sole discretion:
(A) Each of the Borrower Parties shall not, without the prior unanimous written consent of its board of directors, including its two (2) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent to the institution of bankruptcy or insolvency proceedings against it; file a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due;
(B) Each of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower Party, as applicable;
(C) Each of the Borrower Parties except for capital contributions and distributions properly reflected on the books and records of such entity, shall not enter 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 AT Party” and collectively, the “Related AT 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;
(D) Except as contemplated or permitted by the Loan Documents, each Each of the Borrower Parties shall pay all of its debts and liabilities from its own assets;
(E) Each of the Borrower Parties shall cause to be done all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence;
(F) Each of the Borrower Parties shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Person, or shall hire the Manager to maintain such books and records;
(G) Each of the Borrower Parties shall be and shall hold itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party);
(H) Each of the Borrower Parties shall correct any known misunderstanding regarding its status as a separate entity;
(I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name;
(J) Each of the Borrower Parties shall not identify itself or any of its Affiliates affiliates as a division or part of the other;
(K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to Each of the Borrower PartiesParties shall maintain and utilize separate stationery, each invoices and checks bearing its own name, if any;
(L) Each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, except as contemplated by the Loan Documents from the date hereof with respect to the Borrower Parties, and shall hold all of its funds or other assets in its own name;
(LM) Each of the Borrower Parties shall not guaranty or become obligated for the debts of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties;
(MN) Each of the Borrower Parties shall not hold itself or its credit out as being responsible for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties;
(NO) Each of the Borrower Parties shall allocate 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 AT Party;
(OP) Each of the Borrower Parties shall not pledge its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Parties;
(PQ) Each of the Borrower Parties shall maintain adequate capital in light of its contemplated business operations;
(QR) Each of the Borrower Parties shall not incur any indebtedness other than indebtedness that is permitted under the Loan Documents;
(RS) Except with respect to (i) SpectraSite, LLC’s guarantee of Asset Sub II’s obligations under the AT&T Sublease and (ii) guarantees that are expressly contemplated or permitted by the Loan Documents, none Each of the Borrower Parties shall not have any of its obligations guaranteed by an Affiliateaffiliate, except for guarantees that are expressly contemplated by the Loan Documents;
(T) Each of the Borrower Parties shall file their own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and has paid and shall pay any taxes required to be paid under applicable law;
(U) Each of the Borrower Parties shall maintain separate financial statements showing its assets and liabilities separate and apart from those of any other Person and not have their assets listed on any financial statement of any other Person; provided, however, that a Borrower Party’s assets may be included in a consolidated financial statement of its Affiliate provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Borrower Party from such Affiliate and to indicate that such Borrower Party’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on the Borrower Party’s own separate balance sheet;
(V) Each of the Borrower Parties shall not acquire any obligation or securities of its member or of any Affiliate of such Borrower Party (including any Related AT Party);
(W) Each of the Borrower Parties shall not own any asset or property other than, with respect to the Borrowers, the Property and incidental personal property necessary for the ownership and operation of such Property, with respect to Guarantor, its equity interest in each of the Borrowers and incidental personal property necessary for the acquisition, ownership, holding, management and maintenance of such equity interest and with respect to Parent Guarantor, its equity interest in the Guarantor and incidental personal property necessary for the acquisition, ownership, holding, management and maintenance of such equity interest;
(X) Each of the Borrower Parties shall not engage in any business other than the ownership, management and operation of its assets (as such assets are set forth in Section 9.2(W)) and shall conduct and operate its business as presently conducted and operated;
(Y) Each of the Borrower Parties shall not make or permit to remain outstanding any loan or advance to, or own any stock or securities of, any Person (other than investment grade securities and Guarantor’s equity interests in the Borrowers and Parent Guarantor’s equity interests in Guarantor);
(Z) To the fullest extent permitted by law, each of the Borrower Parties shall not engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interest other than such activities as are expressly permitted pursuant to any provision of the Loan Documents and subject to obtaining any approvals required under its organizational documents;
(AA) Each of the Borrower Parties shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities); and
(BB) Each of the Borrower Parties shall not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity (other than Guarantor’s equity interests in the Borrowers and Parent Guarantor’s equity interests in Guarantor) except for interests in Additional Borrowers in accordance with the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
Applicable to Borrower Parties. In addition to any obligations under Section 9.1, each of the The Borrowers hereby representsrepresent, warrants warrant and covenants covenant as of the Closing Date or Additional Closing Date and until such time as all Obligations are paid in full, that absent express advance written waiver from Lender, which may be withheld in Lender’s 's sole discretion, that each Borrower Party:
(A) Each of Except for properties, or interests therein, which the Borrower Parties shall notBorrowers have sold and for which the Borrowers have no continuing obligations or liabilities, without the prior unanimous written consent of its board of directorshas not owned, including its two and does not own and will not own any assets other than (2i) Independent Directors, institute proceedings for itself to be adjudicated bankrupt or insolvent; consent with respect to the institution of bankruptcy or insolvency proceedings against it; file a petition seekingBorrowers, the Properties (including incidental personal property necessary for the operation thereof and proceeds therefrom), or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; consent (ii) with respect to the appointment of a receiverMember and the Borrowers, liquidator, assignee, trustee, sequestrator direct or indirect ownership interests in the Borrowers or such incidental assets as are necessary to enable it to discharge its obligations with respect to the Borrowers (or other similar official) for itself or a substantial part of its property; make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due"OWNERSHIP INTERESTS");
(B) Each has not, and is not, engaged and will not engage in any business, directly or indirectly, other than the ownership, management and operation of the Borrower Parties at all times shall maintain at least two (2) Independent Directors on its board of directors, who shall be selected by such Borrower PartyProperties or the Ownership Interests, as applicable, and acquisition of the Acquisition Properties;
(C) Each of the Borrower Parties except for capital contributions has not entered into, and distributions properly reflected on the books and records of such entity, shall will not enter into into, any contract or agreement with any of its Affiliatespartner, constituentsmember, shareholder, trustee, beneficiary, principal or owners, or any guarantors of any of its obligations or any Affiliate of any of the foregoing (individually, a “Related AT Party” and collectively, the “Related AT Parties”), Borrower Party except upon terms and conditions that are commercially reasonable intrinsically fair and substantially similar to those that would be available in on an arm’sarm's-length transaction basis with an unrelated partythird parties other than such Affiliate (including the Management Agreement);
(D) Except has not incurred any debt (other than among the Borrowers) that remains outstanding as contemplated of Closing and will not incur any debt, secured or permitted by unsecured, direct or contingent (including guaranteeing any obligation), other than (i) the Loan DocumentsObligations, each of the Borrower Parties shall pay all of its debts and liabilities from its own assets(ii) Permitted Indebtedness;
(E) Each has not made any loans or advances to any Person that remains outstanding as of Closing and will not make any loan or advances to any Person (including any of its Affiliates, other than among the Borrowers), and has not acquired and will not acquire obligations or securities of any of its Affiliates other than the other Borrower Parties Parties;
(F) is and reasonably expects to remain solvent and pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall cause become due;
(G) has done or caused to be done and will do all things necessary to observe all organizational formalities applicable to it that are necessary to preserve its existence, and will not, nor will any partner, member, shareholder, trustee, beneficiary, or principal amend, modify or otherwise change its partnership certificate, partnership agreement, articles of incorporation, by-laws, articles of organization, operating agreement, or other organizational documents in any manner with respect to the matters set forth in this Article IX;
(FH) Each has continuously maintained, and shall continuously maintain, its existence and be qualified to do business in all states necessary to carry on its business, specifically including in the case of each Borrower, the state where its Properties are located;
(I) has conducted and operated, and will conduct and operate, its business as presently contemplated with respect to the ownership of the Borrower Parties shall maintain all of its booksProperties, recordsor the Ownership Interests, financial statements as applicable;
(J) has maintained, and will maintain, books and records and bank accounts (other than bank accounts established hereunder, or established by Manager pursuant to the Management Agreement) separate from those of its partners, members, shareholders, trustees, beneficiaries, principals, Affiliates, and any other Person, or shall hire Person (other than the Manager to other Borrowers) and will maintain such books and recordsseparate financial statements except that it may also be included in consolidated financial statements of its Affiliates;
(GK) Each of the Borrower Parties shall be has at all times held, and shall hold will continue to hold, itself out to the public as, a legal entity separate and distinct from any other Person (including any Affiliate or other Related AT Party);
(H) Each of its partners, members, shareholders, trustees, beneficiaries, principals and Affiliates, and any Affiliates of any of the Borrower Parties shall same), and not as a department or division of any Person (other than the other Borrowers) and will correct any known misunderstanding misunderstandings regarding its status existence as a separate legal entity;
(I) Each of the Borrower Parties shall conduct all of its business and shall hold all of its assets in its own name;
(J) Each of the Borrower Parties shall not identify itself or any of its Affiliates as a division or part of the other;
(K) Except (i) as permitted under the Loan Documents, (ii) with respect to the Deposit Account under the Master Lease Deposit Account Agreement into which rents paid by Lessees under certain master leases are directly remitted and (iii) as otherwise contemplated or permitted by the Loan Documents, from the date hereof with respect to the Borrower Parties, each of the Borrower Parties shall not commingle its funds or other assets with those of any other Person, and shall hold all of its funds or other assets in its own name;
(L) Each has paid, and will pay, the salaries of the Borrower Parties shall not guaranty or become obligated for the debts of any other Personits own employees, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesif any;
(M) Each of the Borrower Parties shall not hold itself or its credit out as being responsible has allocated, and will continue to allocate, fairly and reasonably any overhead for the debts or material obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof with respect to the Borrower Partiesshared office space;
(N) Each of the Borrower Parties shall allocate fairly has used, and reasonably any overhead expenses that have been shared will continue to use, its own stationery, invoices and checks (other than those Borrowers who are expressly permitted to use, along with an Affiliateother Borrowers only, including paying for office space common stationary, invoices and services performed by any employee of an Affiliate or Related AT Partychecks);
(O) Each of the Borrower Parties shall not pledge has filed, and will continue to file, its assets to secure the obligations of any other Person, except as contemplated or permitted by the Loan Documents from the date hereof own tax returns with respect to the Borrower Partiesitself (or consolidated tax returns, if applicable) as may be required under applicable law;
(P) Each of the Borrower Parties shall reasonably expects to maintain adequate capital for its obligations in light of its contemplated business operations;
(Q) Each of the Borrower Parties shall has not incur any indebtedness other than indebtedness that is permitted under the Loan Documentssought, acquiesced in, or suffered or permitted, and will not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(R) Except will not enter into any transaction of merger or consolidation, sell all or substantially all of its assets, or acquire by purchase or otherwise all or substantially all of the business or assets of, or any stock or beneficial ownership of, any Person other than in connection with an Acquisition;
(S) has not commingled or permitted to be commingled, and will not commingle or permit to be commingled, its funds or other assets with those of any other Person (other than, with respect to the Borrowers, each other Borrower, or as may be held by Manager, as agent, for each Borrower pursuant to the terms of the Management Agreement);
(iT) SpectraSitehas and will maintain its assets in such a manner that it is not costly or difficult to segregate, LLC’s ascertain or identify its individual assets from those of any other Person;
(U) does not and will not hold itself out to be responsible for the debts or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection with any obligation of any other Person (other than the other Borrowers) that remains outstanding, and will not guarantee or otherwise become liable on or in connection with any obligation (other than the Obligations) of Asset Sub II’s obligations under any other Person (other than the AT&T Sublease and other Borrowers) that remains outstanding;
(iiW) guarantees that are expressly contemplated or permitted by has not held, and, except for funds deposited into the Accounts in accordance with the Loan Documents, none shall not hold, title to its assets other than in its name;
(X) shall comply in all material respects with all of the Borrower Parties shall have any of assumptions, statements, certifications, representations, warranties and covenants regarding or made by it contained in or appended to the nonconsolidation opinion delivered pursuant hereto;
(Y) has conducted, and will continue to conduct, its obligations guaranteed by an Affiliate;business in its own name; and
(Z) has observed, and will continue to observe, all corporate, limited liability company, or limited partnership, as applicable, formalities.
Appears in 1 contract
