Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE ENTITY" means a corporation, limited partnership or limited liability company which, at all times since its formation and thereafter: (i) has not engaged and shall not engage in any business or activity other than with respect to Borrower, the ownership, operation and maintenance of the Property, and activities incidental thereto; (ii) has not acquired or owned and shall not acquire or own any assets other than with respect to Borrower, the Property and such incidental Personal Property as may be necessary for the operation of the Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written LOAN NUMBER: 41655 consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation; (iii) if such entity is (A) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv), which single member limited liability company is governed instead by Section 7.02(c) below), has had and shall have at least one member that satisfies the requirements of Section 7.02(b) below (unless such member is a single member limited liability company which satisfies the requirements of clause (iv) below), and (B) a limited partnership, has had and shall have a general partner that satisfies the requirements of Section 7.02(b) below (unless such general partner is a single member limited liability company which satisfies the requirements of clause (iv) below); (iv) if such entity is a single member limited liability company, such entity shall be formed and organized under Delaware law and otherwise comply with all other Rating Agency criteria for single member limited liability companies (including, without limitation, the inclusion of a "springing member" and delivery of Delaware single member liability company opinions acceptable in all respects to Lender and to the Rating Agencies and Independent Director or equivalent; (v) if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors; provided, however, if this Loan becomes part of a Securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director; (vi) has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization; (vii) has not merged or consolidated and shall not merge or consolidate with any other Person; (viii) has not taken, and shall not take, any action to dissolve, wind-up, terminate or liquidate in whole or in part; to sell, transfer or otherwise dispose of all or substantially all of its assets; to change its legal structure, transfer, or permit the direct or indirect transfer of, any partnership, membership or other equity interests, as applicable, other than Permitted Transfers; or seek to accomplish any of the foregoing; (ix) shall not, without the unanimous written consent of all Borrower's members and the written consent of 100% of the members of the board of directors of the SPE Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(s): (A) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C) make an assignment for the benefit of creditors; (x) shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02; (xi) shall not own any subsidiary or make any investment in any other Person; (xii) shall not commingle its assets with the assets of any other Person; (xiii) shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan and (B) customary unsecured trade payable incurred in the ordinary course of owning and operating the Property, or capital leases or installment financing contracts for shuttle buses, provided the same do not exceed, in the aggregate, at any time a maximum amount of four percent (4%) of the outstanding principal balance of the Loan, and are paid within ninety (90) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms); (xiv) shall maintain its records, books of account, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Each Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox Agreement; (xv) shall only enter into any contract or agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or Guarantor, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties; (xvi) shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person; (xvii) shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, other than the liability which each of the three Borrowers hereunder, jointly and severally, have with respect to the Loan; (xviii) shall not make any loans or advances to any other Person; (xix) shall file its own tax returns as required under federal and state law; (xx) shall hold itself out to the public as a legal entity separate and distinct from any other Person, shall conduct its business solely in its own name or as otherwise permitted under the Trademark Agreement, and shall correct any known misunderstanding regarding its separate identity; (xxi) shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (xxii) shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks; (xxiii) shall pay (or cause the Property Manager, if any, to pay on behalf of Borrower from Borrower's funds) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and (xxiv) shall not acquire obligations or securities of its partners, members or shareholders, as applicable.
Appears in 1 contract
Samples: Loan Agreement (Macquarie Infrastructure Assets Trust)
Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE ENTITYSingle Purpose Entity" means a corporation, limited partnership or limited liability company which, at all times since its formation and thereafter:
(i) has not engaged and shall not engage in any business or activity activity, other than with respect to Borrower, the ownership, operation and maintenance of the Property, Property and activities incidental thereto;
(ii) has not acquired or owned and shall not not, acquire or own any assets other than with respect to Borrower, the Property and such incidental Personal Property as may be necessary for the operation of the Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written LOAN NUMBER: 41655 consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation;
(iii) if such entity is (A) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv), which single member limited liability company is governed instead by Section 7.02(c) below), has had and shall have at least one member that satisfies the requirements of Section 7.02(b) below (unless and such member is a single member limited liability company which satisfies the requirements of clause (iv) below)its managing member, and (B) a limited partnership, has had all of its general partners have satisfied and shall have a general partner that satisfies satisfy the requirements of Section 7.02(b) below (unless such general partner is a single member limited liability company which satisfies the requirements of clause (iv) below);
(iv) if such entity is a single member limited liability company, such entity shall be (A) formed and organized under Delaware law and otherwise comply with all other Rating Agency criteria for single member limited liability companies (including, without limitation, the inclusion of a "springing member" and delivery of Delaware single member liability company opinions acceptable in all respects to Lender and to the Rating Agencies Agencies); and (B) such entity shall have at least one (1) Independent Director on its board of managers; provided however if this Loan becomes part of a securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or equivalent;cause the appointment of, a second Independent Director.
(v) if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors; , provided, however, if this Loan becomes part of a Securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director;
(vi) has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization;
(vii) has not merged or consolidated and shall not merge or consolidate with any other Person;
(viii) has not taken, and shall not take, any action to dissolve, wind-up, terminate or liquidate in whole or in part; to sell, transfer or otherwise dispose of all or .
(ix) substantially all of its assets; to change its legal structure, transfer, ; transfer or permit the direct or indirect transfer of, of any partnership, membership or other equity interestsEquity Interests, as applicable, other than Permitted Transfers; issue additional partnership, membership or other Equity Interests, as applicable; or seek to accomplish any of the foregoing;
(ixx) shall not, without the unanimous written consent of all Borrower's members partners, members, or shareholders, as applicable, and the written consent of 100% of the members of the board of directors of the SPE Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(s): (A) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C) make an assignment for the benefit of creditors;
(xxi) has not, and shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02;
(xixii) shall not own any subsidiary or make any investment in in, any other Person;
(xiixiii) shall not commingle its assets with the assets of any other Person;
(xiiixiv) has not, and shall not not, incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan Loan, the Related Loans and (B) customary unsecured trade payable payables incurred in the ordinary course of owning and operating the Property, or capital leases or installment financing contracts for shuttle buses, Property provided the same are not evidenced by a promissory note, do not exceed, in the aggregate, at any time a maximum amount of four two percent (42%) of the outstanding principal balance amount of the Loan, Loan and are paid within ninety sixty (9060) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms)incurred;
(xivxv) shall maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Each Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox AgreementPerson;
(xvxvi) shall only enter into any contract or agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or Guarantor, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xvixvii) shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviixviii) except as set forth in the Cross-Collateralization Agreement, shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, other than the liability which each of the three Borrowers hereunder, jointly and severally, have with respect to the Loan;
(xviiixix) shall not make any loans or advances to any other Person;
(xixxx) shall fail to file its own tax returns as required under federal and state lawlaw except to the extent an Affiliate of Borrower, as the taxpayer for a consolidated taxpayer group of which Borrower is a Member, files such returns and Borrower reconciles and pays its own tax liabilities directly or by reimbursement to such Affiliate;
(xxxxi) shall hold itself out to the public as a legal entity separate and distinct from any other Person, shall Person and conduct its business solely in its own name or as otherwise permitted under the Trademark Agreement, and shall correct any known misunderstanding regarding its separate identity;
(xxixxii) shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xxiixxiii) shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks;
(xxiiixxiv) shall pay (or cause the Property Manager, if any, Manager to pay on behalf of Borrower from Borrower's funds) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and
(xxivxxv) shall not acquire obligations or securities of its partners, members or shareholders, as applicable.
Appears in 1 contract
Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE ENTITY" “Single Purpose Entity” means a corporation, limited partnership or limited liability company which, at all times since its formation the date of this Agreement and thereafter:
(iA) has not engaged and shall not engage in any business or activity activity, other than with respect to Borrower, the ownership, operation and maintenance of the Property, Mortgaged Property and activities incidental thereto;
(iiB) has not acquired or owned and shall not acquire or own any assets other than with respect to Borrower, the Mortgaged Property and such incidental Personal Property personal property as may be necessary for the operation of the Mortgaged Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written LOAN NUMBER: 41655 consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation;
(iiiC) if such entity is (A1) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv), which single member limited liability company is governed instead by Section 7.02(cD) below, in which case satisfaction of the provisions of §7.21(b)(ii) is not required), has had and shall have at least one (1) member that satisfies the requirements of Section 7.02(b§7.21(b)(ii) below (unless and such member is a single member limited liability company which satisfies the requirements of clause its managing member, or (iv) below), and (B2) a limited partnership, has had all of its general partners have satisfied and shall have a general partner that satisfies satisfy the requirements of Section 7.02(b) below (unless such general partner is a single member limited liability company which satisfies the requirements of clause (iv§7.21(b)(ii) below);
(ivD) if such entity is a single member limited liability company, (1) such entity shall be formed and organized under Delaware law and otherwise comply with all other Rating Agency S&P criteria for single member limited liability companies (including, without limitation, the inclusion of a "“springing member" ” and delivery of Delaware single member limited liability company opinions acceptable in all respects to Lender the Agent); and to the Rating Agencies and (2) such entity shall have at least one (1) Independent Director or equivalentDirector/Manager on its board of directors/managers;
(vE) if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors; provided, however, if this Loan becomes part of a Securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director;
(viF) has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organizationorganization as well as in the jurisdiction where the Mortgaged Property is located;
(viiG) has not merged or consolidated and shall not merge or consolidate with any other Person;
(viiiH) has not taken, and shall not take, (i) take any action to dissolve, wind-up, terminate or liquidate in whole or in part; to (ii) sell, transfer or otherwise dispose of all or substantially all of its assets; to change its legal structure, transfer, ; (iii) transfer or permit the direct or indirect transfer of, of any partnership, membership or other equity interests, as applicable; (iv) issue additional partnership, membership or other than Permitted Transfersequity interests, as applicable; or (v) seek to accomplish any of the foregoing;
(ixI) shall not, without the unanimous written consent of all Borrower's members ’s partners, members, or shareholders, as applicable, and the written consent of 100% of the members of the board of directors of the SPE Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(sDirector(s)/Manager(s): (A1) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B2) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C3) make an assignment for the benefit of creditors;
(xJ) shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02§7.21;
(xiK) notwithstanding anything in this Agreement or any other Loan Document to the contrary, shall not own any subsidiary or make any investment in in, any other Person;
(xiiL) shall not commingle its assets with the assets of any other Person;
(xiiiM) shall not not, incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan Obligations and (B) Hedge Obligations and customary unsecured trade payable payables incurred in the ordinary course of owning and operating the Mortgaged Property, or capital leases or installment financing contracts for shuttle buses, ; provided the same are not evidenced by a promissory note, do not exceed, in the aggregate, at any time a maximum amount of four two percent (42%) of the outstanding principal balance amount of the Loan, Loan and are paid within ninety sixty (9060) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms)incurred;
(xivN) shall maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Each Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox AgreementPerson;
(xvO) shall only enter into any contract or agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or GuarantorBorrower, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xviP) shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xviiQ) shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, other than the liability which each of the three Borrowers hereunder, jointly and severally, have with respect to the Loan;
(xviiiR) shall not make any loans or advances to any other Person;
(xixS) shall file its own tax returns as separate from those of any other Person unless it is a tax disregarded entity not required to file tax returns under federal and state applicable law;
(xxT) shall hold itself out to the public as a legal entity separate and distinct from any other Person, shall Person and conduct its business solely in its own name or as otherwise permitted under the Trademark Agreement, and shall correct any known misunderstanding regarding its separate identity;
(xxiU) shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xxiiV) shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks;
(xxiiiW) shall pay (or cause the Property Manager, if any, property manager to pay on behalf of Borrower from Borrower's ’s funds) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and
(xxivX) shall not acquire obligations or securities of its partners, members or shareholders, as applicable.
Appears in 1 contract
Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE ENTITY" means a corporation, limited partnership or limited liability company which, at all times since its formation and thereafter:
(i) has not engaged and shall not engage in any business or activity activity, other than with respect to Borrower, the ownership, operation and maintenance of the Property, Property and activities incidental thereto;
(ii) has not acquired or owned and shall not not, acquire or own any assets other than with respect to Borrower, the Property and such incidental Personal Property as may be necessary for the operation of the Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written LOAN NUMBER: 41655 consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation;
(iii) if such entity is (A) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv), which single member limited liability company is governed instead by Section 7.02(c) below), has Ply Gem Industries had and shall have at least one member that satisfies the requirements of Section 7.02(b) below (unless and such member is a single member limited liability company which satisfies the requirements of clause (iv) below)its managing member, and (B) a limited partnership, has had all of its general partners have satisfied and shall have a general partner that satisfies satisfy the requirements of Section 7.02(b) below (unless such general partner is a single member limited liability company which satisfies the requirements of clause (iv) below);
(iv) if such entity is a single member limited liability company, such entity shall be (A) formed and organized under Delaware law and otherwise comply with all other Rating Agency criteria for single member limited liability companies (including, without limitation, the inclusion of a "springing member" and delivery of Delaware single member liability company opinions acceptable in all respects to Lender and to the Rating Agencies Agencies); and (B) such entity shall have at least one (1) Independent Director on its board of managers; provided however if this Loan becomes part of a securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or equivalentcause the appointment of, a second Independent Director;
(v) if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors; , provided, however, if this Loan becomes part of a Securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director;
(vi) has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization;
(vii) except as permitted in Section 10.02(b), has not merged or consolidated and shall not merge or consolidate with any other Person;
(viii) has not taken, and shall not take, any action to dissolve, wind-up, terminate or liquidate in whole or in partpart except as permitted in Section 10.02(b); to sell, transfer or otherwise dispose of all or substantially all of its assets; to change its legal structure, transfer, assets except as permitted in or permit the direct or indirect transfer of, of any partnership, membership or other equity interestsEquity Interests, as applicable, other than Permitted Transfers; issue additional partnership, membership or other Equity Interests, as applicable; or seek to accomplish any of the foregoingforegoing except as permitted in Section 10.02(b);
(ix) shall not, without the unanimous written consent of all Borrower's members partners, members, or shareholders, as applicable, and the written consent of 100% of the members of the board of directors of the SPE Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(s): (A) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C) make an assignment for the benefit of creditors;; Ply Gem Industries
(x) shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02;
(xi) shall not own any subsidiary or make any investment in in, any other Person;
(xii) shall not commingle its assets with the assets of any other Person;
(xiii) has not, and shall not not, incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan and (B) customary unsecured trade payable payables incurred in the ordinary course of owning and operating the Property, or capital leases or installment financing contracts for shuttle buses, Property provided the same are not evidenced by a promissory note, do not exceed, in the aggregate, at any time a maximum amount of four two percent (42%) of the outstanding principal balance amount of the Loan, Loan and are paid within ninety sixty (9060) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms)incurred;
(xiv) shall maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Each Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox AgreementPerson;
(xv) shall only enter into any contract or of agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or Guarantor, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xvi) shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xvii) shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, other than the liability which each of the three Borrowers hereunder, jointly and severally, have with respect to the Loan;
(xviii) shall not make any loans or advances to any other Person;
(xix) shall file its own tax returns as required under federal and state law;, provided that, to the extent permitted by applicable state and federal laws and GAAP, Borrower may file consolidated tax returns with Corporate Property Associates 16 Global Incorporated, a Maryland corporation; Ply Gem Industries
(xx) shall hold itself out to the public as a legal entity separate and distinct from any other Person, shall Person and conduct its business solely in its own name or as otherwise permitted under the Trademark Agreement, and shall correct any known misunderstanding regarding its separate identity;
(xxi) shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xxii) shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks;
(xxiii) shall pay (or cause the Property Manager, if any, Manager to pay on behalf of Borrower from Borrower's fundsfund) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and
(xxiv) shall not acquire obligations or securities of its partners, members or shareholders, as applicable.
Appears in 1 contract
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc)
Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE ENTITY" “Single Purpose Entity” means a corporation, limited partnership or limited liability company which, at all times since its formation the date of this Agreement and thereafter:
(iA) has not engaged and shall not engage in any business or activity activity, other than with respect to Borrower, the ownership, operation and maintenance of the Property, Mortgaged Property and activities incidental thereto;
(iiB) has not acquired or owned and shall not acquire or own any assets other than with respect to Borrower, the Mortgaged Property and such incidental Personal Property personal property as may be necessary for the operation of the Mortgaged Property. Borrower may not acquire additional property (whether through purchase or lease of additional land) without the prior written LOAN NUMBER: 41655 consent of Lender, which consent may be conditioned upon receipt of a Rating Confirmation;
(iiiC) if such entity is (A1) a limited liability company (other than a single member limited liability company which satisfies the requirements of clause (iv), which single member limited liability company is governed instead by Section 7.02(cD) below, in which case satisfaction of the provisions of §7.21(b)(ii) is not required), has had and shall have at least one (1) member that satisfies the requirements of Section 7.02(b§7.21(b)(ii) below (unless and such member is a single member limited liability company which satisfies the requirements of clause its managing member, or (iv) below), and (B2) a limited partnership, has had all of its general partners have satisfied and shall have a general partner that satisfies satisfy the requirements of Section 7.02(b) below (unless such general partner is a single member limited liability company which satisfies the requirements of clause (iv§7.21(b)(ii) below);
(ivD) if such entity is a single member limited liability company, (1) such entity shall be formed and organized under Delaware law and otherwise comply with all other Rating Agency S&P criteria for single member limited liability companies (including, without limitation, the inclusion of a "“springing member" ” and delivery of Delaware single member limited liability company opinions acceptable in all respects to Lender the Agent); and to the Rating Agencies and (2) such entity shall have at least one (1) Independent Director or equivalentDirector/Manager on its board of directors/managers;
(vE) if such entity is a corporation, has had and shall have at least one (1) Independent Director on its board of directors; provided, however, if this Loan becomes part of a Securitization and any Rating Agency requires at least two (2) Independent Directors, Borrower shall appoint, or cause the appointment of, a second Independent Director;
(viF) has preserved and shall preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation or organization;
(viiG) has not merged or consolidated and shall not merge or consolidate with any other Person;
(viiiH) has not taken, and shall not take, (i) take any action to dissolve, wind-up, terminate or liquidate in whole or in part; to (ii) sell, transfer or otherwise dispose of all or substantially all of its assets; to change its legal structure, transfer, ; (iii) transfer or permit the direct or indirect transfer of, of any partnership, membership or other equity interests, as applicable; (iv) issue additional partnership, membership or other than Permitted Transfersequity interests, as applicable; or (v) seek to accomplish any of the foregoing, other than, in the case of clauses (ii), (iii) and (iv) in connection with any Permitted Mezzanine Debt and as contemplated by the Intercreditor Agreement;
(ixI) shall not, without the unanimous written consent of all Borrower's members ’s partners, members, or shareholders, as applicable, and the written consent of 100% of the members of the board of directors of the SPE Equity Owner or board of managers in the case of a single member limited liability company, including without limitation the Independent Director(sDirector(s)/Manager(s): (A1) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute; (B) seek or consent to the appointment of a receiver, liquidator or any similar official; or (C) make an assignment for the benefit of creditors;
(x) shall not amend or restate its organizational documents if such change would adversely impact the requirements set forth in this Section 7.02;
(xi) shall not own any subsidiary or make any investment in any other Person;
(xii) shall not commingle its assets with the assets of any other Person;
(xiii) shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation), other than (A) the Loan and (B) customary unsecured trade payable incurred in the ordinary course of owning and operating the Property, or capital leases or installment financing contracts for shuttle buses, provided the same do not exceed, in the aggregate, at any time a maximum amount of four percent (4%) of the outstanding principal balance of the Loan, and are paid within ninety (90) days of the date incurred (other than the capital leases or installment financing contracts which shall be paid in accordance with their terms);
(xiv) shall maintain its records, books of account, financial statements, accounting records and other entity documents separate and apart from those of any other Person and maintain its bank accounts separate and apart from those of any other Person who is not a Borrower. Each Borrower agrees, if requested by Lender, to establish separate bank accounts for all operating and collection accounts, all such accounts to be in accordance with the terms and conditions of the Lockbox Agreement;
(xv) shall only enter into any contract or agreement with any general partner, member, shareholder, principal or Affiliate of Borrower or Guarantor, or any general partner, member, principal or Affiliate thereof, upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties;
(xvi) shall not maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xvii) shall not assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of another Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, other than the liability which each of the three Borrowers hereunder, jointly and severally, have with respect to the Loan;
(xviii) shall not make any loans or advances to any other Person;
(xix) shall file its own tax returns as required under federal and state law;
(xx) shall hold itself out to the public as a legal entity separate and distinct from any other Person, shall conduct its business solely in its own name or as otherwise permitted under the Trademark Agreement, and shall correct any known misunderstanding regarding its separate identity;
(xxi) shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xxii) shall allocate shared expenses (including, without limitation, shared office space) and to use separate stationery, invoices and checks;
(xxiii) shall pay (or cause the Property Manager, if any, to pay on behalf of Borrower from Borrower's funds) its own liabilities (including, without limitation, salaries of its own employees) from its own funds; and
(xxiv) shall not acquire obligations or securities of its partners, members or shareholders, as applicable.either
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