Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent and the Lenders shall have otherwise consented in writing: (a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions; (b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent; (c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee for certain closing and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law; (d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions; (e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor); (f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent); (g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees; (h) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents; (i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and (j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any Leased Property resulting from such Lessor Liens.
Appears in 4 contracts
Samples: Master Agreement (Ruby Tuesday Inc), Master Agreement (Ruby Tuesday Inc), Master Agreement (Ruby Tuesday Inc)
Lessor's Covenants. (i) The Lessor covenants agrees that it will, at its own cost and expense, promptly take such action as may be necessary to duly discharge any Lessor Lien on the Aircraft.
(ii) The Lessor agrees that, unless the Agent and the Lenders so long as no Event of Default shall have otherwise consented occurred and be continuing, the Lessor will not take any action or cause to be taken any action or fail to prevent any action arising by, through or under it, which causes interference with the Lessee's peaceful and quiet use, operation and possession of the Aircraft in writing:accordance with the terms of this Lease.
(aiii) The Lessor agrees that it shall not amend and hereby does indemnify and hold harmless the Lessee and its Partnership Agreementpermitted assigns against any and all claims, except to admit limited partners in connection with lease transactions similar to the Transactions;
losses, liabilities and damages (bincluding attorney fees and disbursements) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with any breach of the Transactions covenants of this Section 4(d), provided, however, that the foregoing indemnity and agreement to hold harmless shall be coextensive in scope with, and shall in no way expand, waive or similar transactions limit, such covenants or agreements or any rights, remedies or defenses which are or would be available in connection therewith.
(iv) Effective upon the execution and (ii) operating expenses incurred delivery of the Lease Supplement on the Delivery Date but only as long as no Event of Default shall have occurred and be continuing, the Lessor does hereby authorize the Lessee, on behalf of and to the exclusion of the Lessor, for the duration of the Term, to exercise in the ordinary course Lessee's own name all existing warranties, service life policies and patent indemnities of business that are not delinquent;
(c) the proceeds manufacturers and maintenance and overhaul agencies of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee for certain closing and transaction costs associated therewith and for the costs of Construction. No portion Aircraft and Parts, if any, and upon the request, and at the cost, of the proceeds Lessee, the Lessor shall use its reasonable efforts to give the Lessee aid and assistance in enforcing the rights of the Loans will be used by the Lessor (i) in connection withLessee arising under such warranties, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions service life policies and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(h) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and
(j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any Leased Property resulting from such Lessor Lienspatent indemnities.
Appears in 2 contracts
Samples: Operating Lease Agreement (American Income Fund I-E), Operating Lease Agreement (American Income Fund I-E)
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, Concord and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Lessee Construction Agent for certain closing and transaction costs Construction Costs associated therewith and for the costs of Constructiontherewith. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the LessorLessor)and will at all times be solvent (as defined in the Bankruptcy Code);
(fd) it will deliver to the AgentAgent and Concord, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' ’ capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles consistent with the income tax basis reports provided to Concord for the period ended on December 31, 2001, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the Agent);
(ge) it will permit the Agent and its Concord and their representatives to examine, and make copies from, the Lessor's ’s books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's ’s performance hereunder with any of its, or its general partner's’s, officers and employees, in each case during normal business hours and upon reasonable notice;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jg) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee such Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases or other agreements, other than immaterial transactions, purchases, leases and other agreements entered into by the Lessor in the ordinary course of its business, in which the other parties to said transactions, leases, purchases or other agreements will have any recourse against Lessor other than recourse to Lessor’s ownership or other interest in the property subject to such transactions, purchases, leases or other agreements, other than liability for required fundings, breach of contract, misrepresentation, gross negligence, willful misconduct, fraud, failure to turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its recourse debts as such debts become due unless such debts are the subject of a bona fide dispute;
(k) it shall promptly notify Concord and the Agent of any claim against the Lessor that would reasonably be expected to result in a material liability of the Lessor for which it is not indemnified; and
(l) it will at all times maintain its Lessor’s Invested Amount with respect to each Leased Property at an amount not less than 11.5% of the Funded Amounts related to such Leased Property and, at the request of Concord (provided such request is not given more than once in a calendar year), and at Concord’s expense, shall provide a certification of the General Partner to such effect.
Appears in 1 contract
Samples: Master Agreement (Concord Efs Inc)
Lessor's Covenants. The Lessor covenants and agrees that, ------------------ unless the Agent Agent, the Lessee and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Construction Agent or the Lessee for certain closing closing, development and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated ---- assuming no reduction in the value of any leased property the Leased Property from its original cost to the Lessor);
(fd) it will deliver to the AgentAgent and the Lessee, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner Lessor's General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and the Lessee);
(ge) it will permit the Agent Agent, the Lessee and its their respective representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI V of the Lease; and;
(jg) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any the Leased Property resulting from such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases or other agreements, other than immaterial transactions, purchases, leases and other agreements entered into by the Lessor in the ordinary course of its business, in which the other parties to said transactions, leases, purchases or other agreements will have any recourse against Lessor which is in addition to Lessor's ownership or other interest in the property subject to such transactions, purchases, leases or other agreements, other than liability for required fundings, breach of contract, misrepresentation, gross negligence, willful misconduct, fraud, failure to turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its debts as such debts become due unless such debts are the subject of a bona fide dispute;
(k) it shall not appoint a successor trustee or co-trustee to replace or serve with Bond Trustee, as the case may be (provided the Lessee's consent shall not be required so long as the fees of such successor trustee or co-trustee do not exceed the then current fees charged by the Bond Trustee for serving in such capacity);
(l) it shall not exercise any rights under the Bond Documents or grant any approvals or consents required to be granted pursuant to the Bond Documents (provided, except as otherwise set forth in (n) below, the Lessee's consent shall not be required as a prerequisite to the Lessor exercising any of its rights under the Bond Documents or granting any approvals or consents required to be granted pursuant thereto);
(m) it will promptly deliver to the Agent copies of any and all notices received pursuant to the Bond Documents; and
(n) it shall not exercise its option to purchase fee simple title to the Leased Property from the Issuer pursuant to Bond Lease until the occurrence of an Event of Default or a Potential Event of Default (provided, however, if at any time prior to the Lease Termination Date the Issuer's credit or bond rating is downgraded below either A by S&P or A1 by Xxxxx'x, the Lessor, with the consent of the Agent and the Lender, may, after first giving the Lessee forty-five (45) days prior written notice and the right and opportunity to exercise the Lessee's option to purchase the Lessor's interest in the Leased Property in accordance with the terms of Article XIV of the Lease, exercise such purchase option without the necessity of obtaining the Lessee's consent thereto, in which case the Lessee shall promptly reimburse the Lessor for any and all costs incurred by the Lessor in exercising such option and the Lease shall continue in full force and effect as a direct lease by the Lessor to the Lessee so long as no Event of Default or Potential Event of Default then exists).
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, the Lender and the Lenders Required Liquidity Banks shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the TransactionsTransaction;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions Transaction or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders Lender will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee Construction Agent for certain closing and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partnerGeneral Partner's, officers and employees;
(h) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and
(j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders Lender and the related Lessee for any diminution in value of any Leased Property resulting from such Lessor Liens.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, ChoicePoint and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent, as agent for the Lessor, or the related Lessee for certain closing and transaction costs associated therewith and for the costs of ConstructionConstruction Costs. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(fb) it will deliver to the AgentAgent and ChoicePoint, as soon as available and in any event within 90 days after the end of each fiscal year, a consolidated balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital income and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together prepared in accordance with copies of its tax returnsGAAP, all certified by an officer a manager of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent)Lessor;
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hc) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jd) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens;
(e) it will at all times maintain its Lessor's Net Invested Amount with respect to each Leased Property at an amount not less than 5.75% of the Funded Amounts related to such Leased Property and, at the request of ChoicePoint (provided such request is not given more than once in a calendar year), and at ChoicePoint's expense, shall provide a certification to such effect; and
(f) at the request of ChoicePoint (provided such request is given not more than once in any fiscal quarter), execute and deliver to ChoicePoint a certificate in substantially the form of Exhibit k hereto.
Appears in 1 contract
Samples: Master Agreement (Choicepoint Inc)
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, ADESA and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent, as agent for the Lessor, or the related Lessee for certain closing and transaction costs associated therewith and for the costs of ConstructionConstruction Costs. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus PLUS (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor) and will at all times be solvent (as defined in the Bankruptcy Code);
(fd) it will deliver to the AgentAgent and ADESA, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and ADESA);
(ge) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees, in each case during normal business hours and upon reasonable notice;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and
(jg) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens.
Appears in 1 contract
Samples: Master Agreement (Allete Inc)
Lessor's Covenants. The Lessor covenants and agrees that, ------------------ unless the Lessee, the Agent and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee for certain closing and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable LawLaw or (iv) in violation of the Operative Documents;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no ---- reduction in the value of any leased property from its original cost to the Lessor);
(f) the Lessor's Invested Amount will be at least 3.5% of the aggregate amount funded by the Funding Parties pursuant hereto;
(g) it will deliver to the Agent, the Lessee and the Lenders, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the Agent, the Lessee and the Lenders);
(gh) it will permit the Agent Agent, the Lenders and its their respective representatives to examine, and make copies fromform, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hi) it shall not consent to or suffer or permit any Lien against the Leased Property or sell or otherwise dispose of the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(ij) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease.
(k) it shall maintain its legal existence and good standing under the laws of Texas and each other state in which the failure to do so would have a Lessor Material Adverse Effect;
(l) it shall comply with all Applicable Laws the non-compliance with which would reasonably be expected to have a Lessor Material Adverse Effect;
(m) it shall notify the Agent and the Lessee of the institution of any litigation against it which would reasonably be expected to have a Lessor Material Adverse Effect; and
(jn) it shall promptly discharge each Lessor Lien pay any and shall indemnify the Lenders all taxes owed by it prior to such taxes becoming delinquent, unless it is contesting such taxes in good faith by appropriate proceedings and the Lessee for any diminution maintaining reserves with respect thereto in value of any Leased Property resulting from such Lessor Liensaccordance with generally accepted accounting principles.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, ChoicePoint and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent, as agent for the Lessor, or the related Lessee for certain closing and transaction costs associated therewith and for the costs of ConstructionConstruction Costs. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor) and will at all times be solvent (as defined in the Bankruptcy Code);
(fd) it will deliver to the AgentAgent and ChoicePoint, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and ChoicePoint);
(ge) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees, in each case during normal business hours and upon reasonable notice;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and
(jg) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens.
Appears in 1 contract
Samples: Master Agreement (Choicepoint Inc)
Lessor's Covenants. The Lessor covenants and agrees that, ------------------ unless the Agent and the Lenders Lender shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire pay costs of acquisition of the Leased Property and to pay the Lessee for certain closing and transaction costs associated therewith and for the costs of Constructiontherewith. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to permit the Agent, as soon as available the Lenders and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its their respective representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(ig) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI V of the Lease; and
(jh) it shall promptly discharge each Lessor Lien not hereafter violate or cause a violation of the terms and shall indemnify provisions of the Lenders and Tripartite Agreement/Option Agreement without the Lessee for any diminution in value consent of any Leased Property resulting from such Lessor Liensthe Lessee.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, DTD and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent or the related Lessee for certain closing closing, development and transaction costs associated therewith and and, if applicable, for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the LessorLessor)and will at all times be solvent (as defined in the Bankruptcy Code);
(fd) it will deliver to the AgentAgent and DTD, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles consistent with the income tax basis reports provided to DTD for the period ended on December 31, 1998, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and DTD);
(ge) it will permit the Agent and DTD and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees, in each case during normal business hours and upon reasonable notice;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jg) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases or other agreements, other than immaterial transactions, purchases, leases and other agreements entered into by the Lessor in the ordinary course of its business, in which the other parties to said transactions, leases, purchases or other agreements will have any recourse against Lessor other than recourse to Lessor's ownership or other interest in the property subject to such transactions, purchases, leases or other agreements, other than liability for required fundings, breach of contract, misrepresentation, gross negligence, willful misconduct, fraud, failure to turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its debts as such debts become due unless such debts are the subject of a bona fide dispute; and
(k) it shall promptly notify DTD and the Agent of any claim against the Lessor that would reasonably be expected to result in a material liability of the Lessor for which it is not indemnified.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, ------------------ unless the Agent Agent, Xxxx Furniture, and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent or the related Lessee for certain closing closing, development and transaction costs associated therewith and and, for the costs of Construction, including hard and soft costs, Plans and Specifications, attorney fees, costs associated with construction of the Building and any fixtures or equipment purchased for use on or in connection with the Leased Property with Funding provided by the Funding Parties. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no ---- reduction in the value of any leased property from its original cost to the Lessor);
(fd) it will deliver to the AgentAgent and Xxxx Furniture, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and Xxxx Furniture);
(ge) it will permit the Agent Agent, Xxxx Furniture and its their respective representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jg) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any diminution in value of any Leased Property resulting from such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases or other agreements, other than immaterial transactions, purchases, leases and other agreements entered into by the Lessor in the ordinary course of its business, in which the other parties to said transactions, leases, purchases or other agreements will have any recourse against Lessor which is in addition to Lessor's ownership or other interest in the property subject to such transactions, purchases, leases or other agreements, other than liability for required fundings, breach of contract, misrepresentation, gross negligence, willful misconduct, fraud, failure to turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person;
(j) it shall pay its debts as such debts become due unless such debts are the subject of a bona fide dispute and are being contested in good faith and by appropriate proceedings; and
(k) except for the Operative Documents, it shall not pledge, authorize or grant any Lien against the Leased Property nor any fixtures or equipment located therein or attached thereto.
Appears in 1 contract
Samples: Master Agreement (Rowe Companies)
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, the Guarantor and the Lenders (or the Guarantor alone in the case of paragraphs (d) through (g)) shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee Construction Agent for certain closing and transaction costs Construction Costs associated therewith and for the costs of Constructiontherewith. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hb) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jc) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any loss, cost, expense or diminution in value of any the Leased Property resulting from from, or incurred as a result of, such Lessor Liens;
(d) upon request of the Guarantor, it will deliver to the Guarantor, or its independent auditors, if requested by the Guarantor (i) as soon as available and in any event within 20 days after the end of each fiscal quarter (other than the fourth fiscal quarter), a consolidated balance sheet of the Lessor as of the end of such fiscal quarter and of related statements of income for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with GAAP certified by a manager or officer of the Lessor and of STI, (ii) as soon as available and in any event within 45 days after the end of each fiscal year, a consolidated balance sheet of the Lessor as of the end of such fiscal year and the related statements of income for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with GAAP, certified by a manager or officer of the Lessor and STI and (iii) within 15 days after the end of each fiscal quarter (provided that the Lessor will use its best efforts to deliver such certificate within 10 days), a certificate in substantially the form set forth in Exhibit J, executed by an officer or manager of the Lessor and STI, provided that, if the Lessor’s fiscal year is not a calendar year, the Lessor will also deliver such a certificate on or before each January 15, and provided, further, that if the Lessor believes that it will be unable to deliver such a certificate in the future or that it cannot make the representation set forth in Section 4.4(l) or (m), then the Lessor, at its option, shall either (A) provide documentation, based on GAAP and reasonably acceptable to the Guarantor, to certify that the Lessor is a “voting interest entity” as defined in FIN 46 (which will be renewed as required), (B) obtain additional assets such that after giving effect thereto, such representation is accurate or (C) transfer its right, title and interest in some, or all, of the Leased Property to another Affiliate of STI such that after giving effect to such transfer, such representation is accurate (and the parties hereto hereby agree that the Lessor may make such transfer without the need to obtain the consent of any party hereto);
(e) in the event that the Guarantor believes that it is reasonably possible that the value of the Leased Property could exceed 30% (or such lower percentage as reasonably determined by the Lessee) of the total assets of the Lessor, upon the request of the Guarantor, the Lessor shall provide to the Guarantor representations, and supporting schedules and analyses, setting forth the Lessor’s evaluation and conclusion that the Lessor is a voting interest entity in accordance with paragraphs 5a, b and c of FIN 46, including, but not limited to, quarterly and annual expected loss calculations;
(f) it will not (A) incur additional non-recourse indebtedness with respect to the Leased Property, (B) change the character of non-targeted equity or recourse borrowing in any way that would result in the Leased Property being essentially the only source of repayment of such funding source, or (C) make any distributions from the Lessor that would, in the case of any of the foregoing clauses (A), (B) and (C), result in such non-recourse funding being equal to or exceeding 95% of the fair value of the Leased Property; and
(g) at any time, upon request of the Guarantor, permit the Guarantor or an agent of the Guarantor and the Guarantor’s independent auditors to examine the Lessor’s books and records and visit the offices and properties of the Lessor during business hours for the purpose of examining such materials, (A) for the purpose of verifying the accuracy of the representations and warranties set forth in the certificate delivered pursuant to paragraph (d)(iii) above or in Section 4.4(l), (m) or (n), or (B) for the purpose of reviewing the materials supporting the conclusion that the Lessor is a voting interest entity if the circumstances described in paragraph (e) or paragraph (d)(iii)(A) above exist or the Lessor has breached its representations or warranties set forth in Section 4.4(l), (m) or (n) or in any certificate delivered pursuant to paragraph (d)(iii) above, provided that the Guarantor and each such agent shall execute and deliver to the Lessor an agreement regarding the confidentiality of the Lessor’s books and records and related information in form and substance reasonably satisfactory to the Lessor. At any time, the Lessor may submit to the Guarantor, for the Guarantor’s acceptance, documentation based on GAAP to certify that the Lessor is a “voting interest entity” as defined by FIN 46, which documentation shall be renewed as required. The Guarantor agrees to consider, and to request its independent accountants to consider, such documentation in good faith. If the Guarantor accepts such determination, in its reasonable discretion, the Lessor shall not be required to comply with the covenants set forth in paragraph (d)(iii), (e) and (f) above, nor to make the representations set forth in Section 4.4(l) or (m) for so long as such documentation is renewed at least annually within 15 days after the end of each calendar year and the Lessor has no reason to believe that it has ceased to be a “voting interest entity” as defined in FIN 46.
(h) it shall deliver an opinion of counsel as to the enforceability of the Operative Documents to which the Lessor is a party, in form reasonably acceptable to the Lenders, to the Lenders on or before the date that is 60 days after the Initial Funding Date.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Administrative Agent, the Company, and the B Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent or the related Lessee for certain closing closing, development and transaction costs associated therewith and and, if applicable, for the costs of ConstructionConstruction (including capitalized interest and fees). No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus PLUS (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(fd) it will deliver to the AgentAdministrative Agent and the Company, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' partners capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAdministrative Agent and the Company);
(ge) it will permit the Agent Administrative Agent, the Company and its their respective representatives to examine, and make copies from, the Lessor's Lessors books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's Lessors performance hereunder with any of its, or its general partner'spartners, officers and employees;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI of the Lease; and;
(jg) it shall promptly discharge each Lessor Lien and shall indemnify and hold harmless the B Lenders and the Lessee Lessees for any costs or expenses related to a Lessor Lien and discharging such Lessor Lien, including, without limitation, any diminution in value of any Leased Property resulting from such Lessor Liens;
(h) it may not consolidate with or merge into any other Person or sell all or substantially all of its assets to any Person;
(i) it shall not sell, mortgage or encumber or assign or otherwise grant any Lien upon, its right, title, interest or obligations in the Leased Property or under any Operative Document, other than an assignment and security interest to the Administrative Agent and the B Lenders pursuant to the Loan Documents; and
(j) it shall comply with all of its obligations under the Operative Documents, except to the extent that compliance is prevented by any failure on the part of any Lessee or the Company to perform its obligations under the Lease.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Lessee Construction Agent for certain closing and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(d) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the Agent, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto the Agent);
(g) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(h) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the LeaseLeases; and
(j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the related Lessee for any diminution in value of any Leased Property resulting from such Lessor Liens.
Appears in 1 contract
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, Concord and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Lessee Construction Agent for certain closing and transaction costs Construction Costs associated therewith and for the costs of Constructiontherewith. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock;
(b) it shall not consent to or permit the creation of any easement or other restriction against any Leased Property other than as permitted pursuant to Article VI of the Lease;
(c) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and such Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from, or (iii) for any purpose in violation of any Applicable Lawincurred as a result of, such Lessor Liens;
(d) it shall not engage in any business or activityupon request of Concord, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions and lease transactions similar to the Transactions;
(e) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor);
(f) it will deliver to the AgentConcord, or its independent auditors, if requested by Concord (i) as soon as available and in any event within 90 20 days after the end of each fiscal quarter (other than the fourth fiscal quarter), a consolidated balance sheet of the Lessor as of the end of such fiscal quarter and of related statements of income for such quarter and the portion of the fiscal year through the end of such quarter, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with GAAP certified by a manager or officer of the Lessor and of STI, (ii) as soon as available and in any event within 45 days after the end of each fiscal year, a consolidated balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows income for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together prepared in accordance with copies GAAP, certified by a manager or officer of the Lessor and STI and (iii) within 15 days after the end of each fiscal quarter (provided that the Lessor will use its tax returnsbest efforts to deliver such certificate within 10 days), all certified a certificate in substantially the form set forth in Exhibit L, executed by an officer or manager of the general partner (Lessor and STI, provided that, if the Lessor's fiscal year is not a calendar year, the Lessor will also deliver such a certificate on or before each January 15, and provided, further, that if the Lessor ever prepares audited financial statementsbelieves that it will be unable to deliver such a certificate in the future or that it cannot make the representation set forth in Section 4.3(l) or (m), it then the Lessor, at its option, shall deliver copies thereto either (A) provide documentation, based on GAAP and reasonably acceptable to Concord, to certify that the AgentLessor is a "voting interest entity" as defined in FIN 46 (which will be renewed as required), (B) obtain additional assets such that after giving effect thereto, such representation is accurate or (C) transfer its right, title and interest in some, or all, of the Leased Properties to another Affiliate of STI such that after giving effect to such transfer, such representation is accurate (and the parties hereto hereby agree that the Lessor may make such transfer without the need to obtain the consent of any party hereto);
(ge) in the event that Concord believes that it is reasonably possible that the aggregate value of the Leased Properties could exceed 30% (or such lower percentage as reasonably determined by the Lessee) of the total assets of the Lessor, upon the request of Concord, the Lessor shall provide to Concord representations, and supporting schedules and analyses, setting forth the Lessor's evaluation and conclusion that the Lessor is a voting interest entity in accordance with paragraphs 5a and b of FIN 46, including, but not limited to, quarterly and annual expected loss calculations;
(f) it will not (A) incur additional non-recourse indebtedness with respect to the Leased Properties, (B) change the character of non-targeted equity or recourse borrowing in any way that would result in the Leased Properties, on either a property by property basis or on a aggregate basis, being essentially the only source of repayment of such funding source, or (C) make any distributions from the Lessor that would, in the case of any of the foregoing clauses (A), (B) and (C), result in such non-recourse funding being equal to or exceeding 95% of the fair value of the Leased Properties, on either a property by property or aggregate basis; and
(g) at any time, upon request of Concord, permit the Agent Concord or an agent of Concord and its representatives Concord's independent auditors to examine, and make copies from, examine the Lessor's books and records, records and to visit the offices and properties of the Lessor during business hours for the purpose of examining such materials, (A) for the purpose of verifying the accuracy of the representations and warranties set forth in the certificate delivered pursuant to discuss paragraph(d)(iii) above or in Section 4.3(l) or (m), or (B) for the purpose of reviewing the materials supporting the conclusion that the Lessor is a voting interest entity if the circumstances described in paragraph (e) or paragraph (d)(iii)(A) above exist or the Lessor has breached its representations or warranties set forth in Section 4.3(l) or (m) or in any certificate delivered pursuant to paragraph (d)(iii) above, provided that Concord and each such agent shall execute and deliver to the Lessor an agreement regarding the confidentiality of the Lessor's performance hereunder with books and records and related information in form and substance reasonably satisfactory to the Lessor. At any of itstime, or the Lessor may submit to Concord, for Concord's acceptance, documentation based on GAAP to certify that the Lessor is a "voting interest entity" as defined by FIN 46, which documentation shall be renewed as required. Concord agrees to consider, and to request its general partner'sindependent accountants to consider, officers and employees;
(h) it such documentation in good faith. If Concord accepts such determination, in its reasonable discretion, the Lessor shall not consent be required to comply with the covenants set forth in paragraph (d)(iii), (e) and (f) above, nor to make the representations set forth in Section 4.3(l) or suffer or permit any Lien against (m) for so long as such documentation is renewed at least annually within 15 days after the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation end of any easement or other restriction against the Leased Property other than as permitted pursuant to Article VI of the Lease; and
(j) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders calendar year and the Lessee for any diminution Lessor has no reason to believe that it has ceased to be a "voting interest entity" as defined in value of any Leased Property resulting from such Lessor LiensFIN 46.
Appears in 1 contract
Samples: Master Agreement (Concord Efs Inc)
Lessor's Covenants. The Lessor covenants and agrees that, unless the Agent Agent, Borders and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the related Leased Property and to pay the Construction Agent, as agent for the Lessor, or the related Lessee for certain closing and transaction costs associated therewith and for the costs of ConstructionConstruction Costs. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated assuming no reduction in the value of any leased property from its original cost to the Lessor) and will at all times be solvent (as defined in the Bankruptcy Code);
(fd) it will deliver to the AgentAgent and Borders, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, prepared in accordance with sound accounting principles, together with copies of its tax returns, all certified by an officer of the general partner General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and Borders);
(ge) it will permit the Agent and its representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees, in each case during normal business hours and upon reasonable notice;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI V of the Lease; and
(jg) it shall not incur or permit to exist, and will promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee Lessees for any loss, cost, expense or diminution in value of any Leased Property resulting from from, or incurred as a result of, such Lessor Liens.
Appears in 1 contract
Samples: Master Agreement (Borders Group Inc)
Lessor's Covenants. The Lessor covenants and agrees that, ------------------ unless the Agent Agent, the Lessee and the Lenders shall have otherwise consented in writing:
(a) it shall not amend its Partnership Agreement, except to admit limited partners in connection with lease transactions similar to the Transactions;
(b) it shall not incur any indebtedness or other monetary obligation or liability, other than (i) non-recourse indebtedness incurred in connection with the Transactions or similar transactions and (ii) operating expenses incurred in the ordinary course of business that are not delinquent;
(c) the proceeds of the Loans received from the Lenders will be used by the Lessor solely to acquire the Leased Property and to pay the Construction Agent or the Lessee for certain closing closing, development and transaction costs associated therewith and for the costs of Construction. No portion of the proceeds of the Loans will be used by the Lessor (i) in connection with, whether directly or indirectly, any tender offer for, or other acquisition of, stock of any corporation with a view towards obtaining control of such other corporation, corporation or (ii) directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose in violation of any Applicable Law;
(db) it shall not engage in any business or activity, or invest in any Person, except for activities similar to its activities conducted on the date hereof, the Transactions Transaction and lease transactions similar to the TransactionsTransaction;
(ec) it will maintain tangible net worth in an amount no less than the sum of (i) $100,000 plus (ii) 3% of its total assets (calculated ---- assuming no reduction in the value of any leased property the Leased Property from its original cost to the Lessor);
(fd) it will deliver to the AgentAgent and the Lessee, as soon as available and in any event within 90 days after the end of each fiscal year, a balance sheet of the Lessor as of the end of such fiscal year and the related statements of income, partners' capital and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, together with copies of its tax returns, all certified by an officer of the general partner Lessor's General Partner (and if the Lessor ever prepares audited financial statements, it shall deliver copies thereto thereof to the AgentAgent and the Lessee);
(ge) it will permit the Agent Agent, the Lessee and its their respective representatives to examine, and make copies from, the Lessor's books and records, and to visit the offices and properties of the Lessor for the purpose of examining such materials, and to discuss the Lessor's performance hereunder with any of its, or its general partner's, officers and employees;
(hf) it shall not consent to or suffer or permit any Lien against the Leased Property, other than as expressly contemplated pursuant to the Operative Documents;
(i) it shall not consent to or suffer or permit the creation of any easement or other restriction against the any Leased Property other than as permitted pursuant to Article VI V of the Lease; and;
(jg) it shall promptly discharge each Lessor Lien and shall indemnify the Lenders and the Lessee for any diminution in value of any the Leased Property resulting from such Lessor Liens;
(h) it shall not enter into any other transactions, leases, purchases or other agreements, other than immaterial transactions, purchases, leases and other agreements entered into by the Lessor in the ordinary course of its business, in which the other parties to said transactions, leases, purchases or other agreements will have any recourse against Lessor which is in addition to Lessor's ownership or other interest in the property subject to such transactions, purchases, leases or other agreements, other than liability for required fundings, breach of contract, misrepresentation, gross negligence, willful misconduct, fraud, failure to turn over funds and similar exceptions to limitations on recourse;
(i) it shall not guaranty the liabilities of any other Person; and
(j) it shall pay its debts as such debts become due unless such debts are the subject of a bona fide dispute.
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
