Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person. (2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons. (3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees. (4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis. (5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses. (6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof. (7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party. (8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. (9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP. (10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations. (11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns. (12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks. (13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower). (14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 3 contracts
Samples: Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Premises represent all of the assets owned or leased by Borrower shall as of the date hereof, and Borrower has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligations.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall is not pledge, grant any security interest in, hypothecate or otherwise encumber presently a party to a pledge of its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 3 contracts
Samples: Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp), Loan Agreement (Friendly Ice Cream Corp)
Nonconsolidation. The Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent and the Requisite Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement;
(iv) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Administrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower, (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group and (C) the Borrower shall prepare and maintain its own separate financial statements and shall provide copies of such financial statements to any Lender upon reasonable request by such Lender;
(A) the Borrower maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Parent Group and (C) the separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: (i) shall not have been at the time of his or her appointment or at any time during the preceding five years, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): TD SYNNEX Corporation, any Originator, or any of their respective subsidiaries or affiliates (other than the Borrower), (B) a supplier to any of the Independent Parties, (C) an entity controlling or under common control with any partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any director, officer, employee, associate, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (ii) has prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal, state or provincial law relating to bankruptcy and (iii) has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities. The Borrower shall give the Lenders notice, in writing, not less than ten (10) days prior to the effective date of any decision to appoint a new director of the Borrower as an “Independent Director”, and shall certify to the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain minutes of the meetings and other proceedings of its own checking account or accounts with commercial banking institutions separate from other Persons.shareholders and board of directors;
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6xvi) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out credit as being liable for the debts available to satisfy obligations of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.others;
(7xvii) Borrower shall not enter into any contract acquire obligations or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate Stock of any constituent party member of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.the Parent Group;
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9xviii) Borrower shall issue correct any known misunderstanding regarding its separate financial statements prepared not less frequently than annually and prepared according to GAAP.identity;
(10xix) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.capital;
(11xx) Borrower shall conduct its affairs strictly comply with each of the assumptions set forth in accordance that certain legal opinion delivered by Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxxx LLP with its organizational documents, including Borrower's corporate managing member's organizational documents respect to true sale and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person non-substantive consolidation matters; and
(xxi) Parent and Borrower shall file its own tax returns.
(12) Borrower shall not hold itself out to the public or to strictly observe corporate formalities in making and documenting any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party capital contributions (including any Affiliate of Borrower or constituent party of Contributed Receivables) from Parent to Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 3 contracts
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp)
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the PremisesMortgaged Premises and the Equipment, nor engage in any business other than owning and leasing the PremisesMortgaged Premises and the Equipment, including financing the Mortgaged Premises and the Equipment with LenderLender or its affiliates. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans Mortgage Loans, the Equipment Loan, and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans Mortgage Loans, the Equipment Loan and the indebtedness evidenced by the Related Mortgage Notes and the Related Equipment Note may be secured (subordinate or pari passu) by the Premises Equipment or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents and the Mortgage Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 2 contracts
Samples: Equipment Loan and Security Agreement (Tumbleweed Inc), Equipment Loan and Security Agreement (Tumbleweed Inc)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Equipment and the Mortgaged Premises represent all of the assets owned or leased by Borrower shall as of the date hereof, and Borrower has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Equipment Loan, the Mortgage Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligations.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 2 contracts
Samples: Equipment Loan and Security Agreement (Tumbleweed Inc), Equipment Loan and Security Agreement (Tumbleweed Inc)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Equipment, the Fee Properties, the Fee Equipment and related property represent all of the assets owned or leased by Borrower shall as of the date hereof, and Borrower has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans and Equipment Loans, Mortgage Loan, trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligation.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Equipment Loan and Security Agreement (Alon USA Energy, Inc.)
Nonconsolidation. (1) Borrower Debtor shall at all times maintain correct and complete books and records of account separate from all other Persons. Where When necessary or appropriate, Borrower Debtor shall disclose the nature of the transactions transaction contemplated by the Loan Documents and BorrowerDebtor's independent status to its creditors. Borrower Debtor shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with LenderFFCA. Borrower Debtor shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower Debtor shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower Debtor shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower Debtor jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower Debtor contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower Debtor and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower Debtor or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower Debtor shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower Debtor will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower Debtor shall not enter into any contract or agreement with any Affiliate of BorrowerDebtor, any constituent party of Borrower Debtor or any Affiliate of any constituent party of Borrower Debtor except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower Debtor shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower Debtor shall issue separate unaudited financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower Debtor shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower Debtor shall conduct its affairs strictly in accordance with the terms of its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower Debtor shall at all times be maintained in a manner permitting the assets and liabilities of Borrower Debtor to be easily separated and readily ascertained from those of any other Person and Borrower Debtor shall file its own tax returns.returns when and where required
(12) Borrower Debtor shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower Debtor shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower Debtor shall not make any loans or advances to any third party (including any Affiliate of Borrower Debtor or constituent party of BorrowerDebtor); provided, however, that Debtor may make distributions as dividends to its members so long as no Event of Default has occurred and is continuing.
(14) Borrower Debtor shall not, as to itself or as to other Persons, (ai) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower Debtor or other Persons or seeking reorganization, arrangement, adjustment, winding-winding- up, liquidation, dissolution, composition or other relief with respect to Borrower Debtor or its debts or other Persons or their debts or (bii) seek appointment of a receiver, trustee, custodian or other similar official for Borrower Debtor or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of BorrowerDebtor's creditors. Borrower Debtor shall not take any action in furtherance of, or indicating its consents consent to, approval of or acquiescence in, any of the acts set forth above. Borrower Debtor shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Shoneys Inc)
Nonconsolidation. (1) Borrower shall at all times maintain Debtor maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose Debtor has disclosed the nature of the transactions transaction contemplated by the Loan Documents and BorrowerDebtor's independent status to its creditors. Borrower shall The Premises and related restaurant equipment represent all of the assets owned or leased by Debtor as of the date hereof, and Debtor has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain Debtor maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower Debtor shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower Debtor jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower Debtor contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower Debtor or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall Debtor has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will Debtor has not hold held itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Debtor is not a guarantor of any portion thereofobligations.
(7) Borrower shall Other than is contemplated herein, Debtor is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Debtor has not made any loans or advances to any third party (including any Affiliate or constituent party of Debtor).
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct 8) Debtor has conducted its affairs strictly in accordance with its organizational documents, documents including BorrowerDebtor's corporate managing membergeneral partner's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall Debtor does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower Debtor (i) is solvent, (ii) is able to pay its obligations as they become due and (iii) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall Debtor has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Debtor has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower Debtor or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower Debtor or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower Debtor or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of BorrowerDebtor's creditors. Borrower All representations and warranties of Debtor made in this Agreement shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of survive the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debtsClosing.
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's ’s independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm'sarm’s-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans Loan and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans Loan may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's ’s general partner’s organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.. Xxxxxxxx Xx. 00000 GE No. 8004-2212 0000 Xxxxxx Xxxxx Wilmington, North Carolina
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's ’s assets or make a general assignment for the benefit of Borrower's ’s creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Nonconsolidation. (1) Borrower Debtor shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower Debtor shall disclose the nature of the transactions transaction contemplated by the Loan Documents and BorrowerDebtor's independent status to its creditors. Borrower Debtor shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with LenderFFCA. Borrower Debtor shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower Debtor shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower Debtor shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower Debtor jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower Debtor contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and 18 115 nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower Debtor and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower Debtor or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower Debtor shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower Debtor will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower Debtor shall not enter into any contract or agreement with any Affiliate of BorrowerDebtor, any constituent party of Borrower Debtor or any Affiliate of any constituent party of Borrower Debtor except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length armslength basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower Debtor shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower Debtor shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower Debtor shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower Debtor shall conduct its affairs strictly in accordance with its organizational documents, including BorrowerDebtor's corporate managing membergeneral partner's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower Debtor shall at all times be maintained in a manner permitting the assets and liabilities of Borrower Debtor to be easily separated and readily ascertained from those of any other Person and Borrower Debtor shall file its own tax returns.
(12) Borrower Debtor shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower Debtor shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower Debtor shall not make any loans or advances to any third party (including any Affiliate of Borrower Debtor or constituent party of BorrowerDebtor).
. 19 116 (14) Borrower Debtor shall not, as to itself or as to other Persons, (ai) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower Debtor or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower Debtor or its debts or other Persons or their debts or (bii) seek appointment of a receiver, trustee, custodian or other similar official for Borrower Debtor or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of BorrowerDebtor's creditors. Borrower Debtor shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower Debtor shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Uni Marts Inc)
Nonconsolidation. (1i) The Borrower has not entered into any agreement other than this Agreement, the other Related Documents to which it is a party, the agreements relating to the Existing Securitization to which it is a party, any other agreements or instruments that, in the aggregate, neither contain payment obligations or other liabilities on the part of the Borrower in excess of $100,000 nor would upon default result in a Borrower Material Adverse Effect, and, with the prior written consent of the Lender, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower's business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall at be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) the Borrower shall compensate all times maintain correct employees, consultants and complete agents directly or indirectly through reimbursement of the Parent, from the Borrower's bank accounts, for services provided to the Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group, on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement;
(iv) the Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent pursuant to the terms of the Administrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(v) the Borrower maintains financial statements, records and books of account separate from that of each member of the Parent Group;
(vi) the financial statements and books and records of account the Borrower reflect the separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature existence of the transactions Borrower;
(A) the Borrower maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables) and (B) except as contemplated by the Loan Documents and Administrative Services Agreement, the Borrower's independent status to its creditors. Borrower shall funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not own or lease any assets other than the Premises, nor engage in any business other than owning been and leasing the Premises, including financing the Premises with Lender. Borrower shall are not commingle its assets and its liabilities commingled with those of any other Person.member of the Parent Group;
(2viii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower's organizational documents, no member of the Parent Group (A) pays the Borrower's expenses, (B) guarantees the Borrower's obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower's own name and on its own stationery;
(x) Borrower shall maintain separate office space from the offices of any member of the Parent Group (which office space may be located at the same address as any member of the Parent Group) and identify such office by a sign in its own checking account or accounts with commercial banking institutions separate from other Persons.name; and
(3xi) To the extent that Borrower shares the same employees with other Personsmaintains at least one independent director who (A) is not a Stockholder, the salaries of and the expenses related to providing benefits to such employeesdirector, at all times shall beofficer, fairly and nonarbitrarily allocated among such Personsemployee or associate, with the result that each such Person shall bear its fair share or any immediate family of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expensesforegoing, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for member of the debts of any other Person), Parent Group (other than a director of the Loans Borrower) and trade either (B) has (1) prior experience as an independent director for an entity whose organizational documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and operational debt incurred (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured their respective businesses, advisory, management, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, or (subordinate or pari passuC) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or is otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(12) Borrower shall not hold itself out acceptable to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checksLender.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the PremisesFee Properties, Fee Equipment, the Equipment and related property or its rights under the Master Lease and any insurance policies, nor engage in any business other than owning and leasing the PremisesFee Properties, Fee Equipment, Equipment and related property, including financing the Premises Fee Properties, Fee Equipment and Equipment with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and Equipment Loans, the Mortgage Loan, trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents or the Mortgage Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing membergeneral partner's organizational documents and shall observe all necessary, SCS Finance I Equipment Loan appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns if it is required to file tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Equipment Loan and Security Agreement (Alon USA Energy, Inc.)
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's ’s independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm'sarm’s-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans Loan and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans Loan may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.. Xxxxxxxx Xx. 00000 GE No. 8004-0863 0000 Xxxxxx Xxxx Albany, Georgia
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's ’s general partner’s organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's ’s assets or make a general assignment for the benefit of Borrower's ’s creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Nonconsolidation. (1) Borrower shall at all times maintain correct maintains appropriate and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Premises and cash capital contributions represent all of the assets owned or leased by Borrower shall as of the date hereof, and Borrower has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligations.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Alexanders J Corp)
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's ’s independent Contract No. 29585 GE No. 8004-3736 Dunn, North Carolina status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm'sarm’s-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans Loan and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans Loan may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's ’s general partner’s organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.. Xxxxxxxx Xx. 00000 GE No. 8004-3736 Dunn, North Carolina
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's ’s assets or make a general assignment for the benefit of Borrower's ’s creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Deed of Trust (Jameson Inns Inc)
Nonconsolidation. (1) Borrower Debtor shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall Debtor will disclose the nature of the transactions transaction contemplated by the Loan Documents and BorrowerDebtor's independent status to its creditors. Borrower Debtor shall not own or lease any assets other than the PremisesPremises and related restaurant equipment, nor engage in any business other than owning and leasing the PremisesPremises and related restaurant equipment, including financing the Premises with LenderFFCA. Borrower Debtor shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower Debtor shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower Debtor shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower Debtor jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower Debtor contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower Debtor and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower Debtor or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall Debtor will not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person (and Borrower Debtor will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereofPremises.
(7) Borrower Debtor shall not enter into any contract or agreement with any Affiliate of BorrowerDebtor, any constituent party of Borrower Debtor or any Affiliate of any constituent party of Borrower Debtor except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by with respect to the Loan Documents, Borrower Debtor shall not pledge, grant any security interest in, hypothecate or otherwise encumber pledge its assets for the benefit of any other Persons.
(9) Borrower Debtor shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAPgenerally accepted accounting principles consistently applied.
(10) Borrower Debtor shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower Debtor shall conduct its affairs strictly in accordance with its organizational documents, including BorrowerDebtor's corporate managing membergeneral partner's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower Debtor shall at all times be maintained in a manner permitting the assets and liabilities of Borrower Debtor to be easily separated and readily ascertained from those of any other Person and Borrower Debtor shall file its own tax returns.
(12) Borrower Debtor shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower Debtor shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower Debtor shall not make any loans or advances to any third party (including any Affiliate of Borrower Debtor or constituent party of BorrowerDebtor).
(14) Borrower Debtor shall not, as to itself or as to other Persons, (ai) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower Debtor or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower Debtor or its debts or other Persons or their debts or (bii) seek appointment of a receiver, trustee, custodian or other similar official for Borrower Debtor or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of BorrowerDebtor's creditors. Borrower Debtor shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower Debtor shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the The Premises, nor engage in any business other than owning SCS Finance II, L.P. Mortgage Loan Equipment and leasing related property represent all of the Premisesassets owned or leased by Borrower as of the date hereof, including financing the Premises with Lender. and Borrower shall has not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans Loans, the loans may be made by Lender pursuant to the Equipment Loan Documents and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligation.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing membergeneral partner's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance ofSCS Finance II, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.L.P. Mortgage Loan
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, Equipment and related property or its rights under the Lease and any insurance policies, nor engage in any business other than owning and leasing the Premises, Equipment and related property, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and Loans, loans made by Lender to Borrower pursuant to the Equipment Loan Documents, trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents and the Equipment Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing membergeneral partner's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner SCS Finance II, L.P. Mortgage Loan permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns if it is required to file any tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other another Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain correct appropriate and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the PremisesPremises and cash, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.Section 6.G.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returnsPerson.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person, except that Borrower may be included in Lessee's or its affiliates' reports under the Securities Exchange Act of 1934, as amended, and its and their consolidated financial statements, as appropriate, provided such statements adequately disclose the separate legal existence of Borrower, the separate ownership by Borrower of the Premises and the separate liabilities of Borrower. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Alexanders J Corp)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's ’s independent status to its creditors. Borrower shall has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans Loan and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligations.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's ’s general partner’s organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Xxxxxxxx Xx. 00000 GE No. 8004-2212 5102 Xxxxxx Court Wilmington, North Carolina
(10) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall maintain and utilize separate stationery, invoices and checksnot be engaged in any business or transaction for which its remaining capital is or may be unreasonably small.
(1311) Borrower shall not make has no actual intent to hinder, delay or defraud creditors in connection with any loans of the transactions contemplated herein or advances intent to any third party incur (including any Affiliate of Borrower or constituent party of Borrower)belief that it is incurring) debts beyond its ability to pay the same as they mature.
(1412) Borrower shall has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's ’s assets or make made a general assignment for the benefit of Borrower's ’s creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Nonconsolidation. The Borrower shall conduct its activities at all times so that the following facts are true and correct in all material respects at all times:
(i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower has duly appointed a board of managers and its business is managed solely by its own officers and managers, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or manager of the Borrower and not as an officer, director, manager, employee or agent of any member of the Parent Group;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Member, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also a consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and (B) Borrower shall not have any employees;
(iv) Borrower shall pay its own incidental administrative costs and expenses from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Member on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than as contemplated under the Related Documents, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of managers and otherwise observes limited liability company formalities;
(A) the financial statements, the books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(viii) except as contemplated under the Related Documents, (A) the Borrower maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) the Borrower’s funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Parent Group and (C) the separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Member;
(ix) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Secured Parties;
(x) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xi) the Borrower maintains at least one Independent Manager;
(xii) the limited liability company agreement of the Borrower requires the affirmative vote of each independent manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xiii) Borrower shall maintain (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain minutes of the meetings and other proceedings of its own checking account or accounts with commercial banking institutions separate from other Persons.members and board of managers;
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing member's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(12xiv) Borrower shall not hold itself out to the public or to any of its individual creditors credit as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.available to satisfy obligations of others;
(13xv) Borrower shall not make acquire obligations or Stock of any loans or advances to any third party (including any Affiliate member of Borrower or constituent party of Borrower).the Parent Group;
(14xvi) Borrower shall not, as to itself or as to other Persons, correct any known misunderstanding regarding its separate legal identity; and
(axvii) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debtsremain Solvent.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Cumulus Media Inc)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the The Premises, nor engage in any business other than owning Equipment and leasing related property represent all of the Premisesassets owned or leased by Borrower as of the date hereof, including financing the Premises with Lender. and Borrower shall has not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.. SCS Finance I, L.P. Mortgage Loan
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans Loans, the loans may be made by Lender pursuant to the Equipment Loan Documents and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligation.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing membergeneral partner's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's ’s independent status to its creditors. Borrower shall has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans Loan and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligations.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's ’s general partner’s organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The booksXxxxxxxx Xx. 00000 GE No. 8004-0863 0000 Xxxxxx Xxxx Albany, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.Georgia
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's ’s assets or make made a general assignment for the benefit of Borrower's ’s creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the PremisesFee Properties, Fee Equipment, the Equipment and related property or its rights under the Master Lease and any insurance policies, nor engage in any business other than owning and leasing the PremisesFee Properties, Fee Equipment, Equipment and related property, including financing the Premises Fee Properties, Fee Equipment and Equipment with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), other than the Loans and Equipment Loans, the Mortgage Loan, trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower shall not enter into any contract or agreement with any Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents or the Mortgage Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct its affairs strictly in accordance with its organizational documents, including Borrower's corporate managing membergeneral partner's organizational documents and shall observe all necessary, SCS Finance II Equipment Loan appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns if it is required to file tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Equipment Loan and Security Agreement (Alon USA Energy, Inc.)
Nonconsolidation. (1) Borrower shall at all times maintain maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose has disclosed the nature of the transactions transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Equipment, the Fee Properties, the Fee Equipment and related property represent all of the assets owned or leased by Borrower shall as of the date hereof, and Borrower has not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle commingled its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain maintains its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, employees have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of the salary and benefit costs associated with all such common employees.. SCS Finance II Equipment Loan
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear bears its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, are fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear bears its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear bears its fair share of such expenses.
(6) Borrower shall has not incur incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming contingent, including, without limitation, liability for the debts of any other Person (and Borrower will has not hold held itself out as being liable for the debts of any other Person), other than the Loans and Equipment Loans, Mortgage Loan, trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or Borrower is not a guarantor of any portion thereofobligation.
(7) Borrower shall is not enter into any contract or agreement with any Affiliate presently a party to a pledge of Borrower, any constituent party of Borrower or any Affiliate of any constituent party of Borrower except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than to those that would be available on an arms-length basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons. Borrower has not made any loans or advances to any third party (including any Affiliate or constituent party of Borrower).
(9) 8) Borrower shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower shall conduct has conducted its affairs strictly in accordance with its organizational documents, documents including Borrower's corporate managing member's organizational documents and shall observe has observed all necessary, appropriate and customary formalities. The books, records and accounts of Borrower shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(129) Borrower shall does not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(1310) Borrower (a) is solvent, (b) is able to pay its obligations as they become due and (c) is not and shall not make be engaged in any loans business or advances to any third party (including any Affiliate of Borrower transaction for which its remaining capital is or constituent party of Borrower)may be unreasonably small.
(1411) Borrower shall has no actual intent to hinder, delay or defraud creditors in connection with any of the transactions contemplated herein or intent to incur (or belief that it is incurring) debts beyond its ability to pay the same as they mature.
(12) Borrower has not, as to itself or as to other Persons, (a) commence commenced any case, proceeding or other action under any existing or future applicable law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek sought appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make made a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.
Appears in 1 contract
Samples: Equipment Loan and Security Agreement (Alon USA Energy, Inc.)
Nonconsolidation. (1) Borrower Debtor shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower Debtor shall disclose the nature of the transactions transaction contemplated by the Loan Documents and BorrowerDebtor's independent status to its creditors. Borrower Debtor shall not own or lease any assets other than the PremisesPremises and the personal property and inventory located thereon, nor engage in any business other than owning and leasing the Premises, including financing the Premises with LenderFFCA. Borrower Debtor shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower Debtor shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower Debtor shares the same employees with other Persons, the salaries of and the expenses related to providing 81 benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower Debtor jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower Debtor contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower Debtor and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower Debtor or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower Debtor shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower Debtor will not hold itself out as being liable for the debts of any other Person), other than the Loans loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. No indebtedness other than the Loans may be secured (subordinate or pari passu) by the Premises or any portion thereof.
(7) Borrower Debtor shall not enter into any contract or agreement with any Affiliate of BorrowerDebtor, any constituent party of Borrower Debtor or any Affiliate of any constituent party of Borrower Debtor except upon terms and conditions that are intrinsically fair and no more favorable to Borrower than substantially similar to those that would be available on an arms-length armslength basis with third parties other than any such party.
(8) Except as contemplated by the Loan Documents, Borrower Debtor shall not pledge, grant any security interest in, hypothecate or otherwise encumber its assets for the benefit of any other Persons.
(9) Borrower Debtor shall issue separate financial statements prepared not less frequently than annually and prepared according to GAAP.
(10) Borrower Debtor shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations.
(11) Borrower Debtor shall conduct its affairs strictly in accordance with its organizational documents, including BorrowerDebtor's corporate managing membergeneral partner's organizational documents and shall observe all necessary, appropriate and customary formalities. The books, records and accounts of Borrower Debtor shall at all times be maintained in a manner permitting the assets and liabilities of Borrower to be easily separated and readily ascertained from those of any other Person and Borrower shall file its own tax returns.
(12) Borrower shall not hold itself out to the public or to any of its individual creditors as being a unified entity with assets and liabilities in common with any other Person. Borrower shall maintain and utilize separate stationery, invoices and checks.
(13) Borrower shall not make any loans or advances to any third party (including any Affiliate of Borrower or constituent party of Borrower).
(14) Borrower shall not, as to itself or as to other Persons, (a) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to Borrower or other Persons or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to Borrower or its debts or other Persons or their debts or (b) seek appointment of a receiver, trustee, custodian or other similar official for Borrower or for all or any substantial part of its or other Person's assets or make a general assignment for the benefit of Borrower's creditors. Borrower shall not take any action in furtherance of, or indicating its consents to, approval of or acquiescence in, any of the acts set forth above. Borrower shall not be unable to, or admit in writing its inability to, pay its debts.manner
Appears in 1 contract
Samples: Loan Agreement (Uni Marts Inc)
