Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not: (i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto; (ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements; (iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of Lender; (iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents; (v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender; (vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for; (vii) incur any Indebtedness other than Permitted Indebtedness; (viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets; (ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower; (x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof; (xi) seek dissolution or winding up, in whole or in part; (xii) fail to correct any known misunderstandings regarding the separate identity of Borrower; (xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents); (xiv) make any loan or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof; (xv) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checks; (xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof); (xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses; (xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations; (xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations; (xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action; (xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or (xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Inland Real Estate Income Trust, Inc.), Loan and Security Agreement (Inland Real Estate Income Trust, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of Lender, other than such transfers, dispositions and changes expressly permitted under the terms of the Loan Documents;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or to comply in all material respects with the provisions of Borrower’s organizational documents (which organizational documents shall not be terminated without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents);
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in the Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereofthereof (excluding any contribution or reimbursement agreement among any of Borrower, Affiliate Borrower and any Guarantor in connection with the Loan);
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or (except pursuant to the Secured Guaranty and the Secured Guaranty Deed of Trust);
(xiv) allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower Borrower, except, (except A) in the case of any Guarantor, pursuant to the Loan Documents), and (b) in the case of 3001 Mission Oaks and 3175 Mission Oaks, pursuant to a guaranty agreement in favor of Lender covering Indebtedness of Borrower owed to Lender and any collateral provided to Lender as security for any such guaranty obligations;
(xivxv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof; provided, however, dividends, distributions and payments made by Borrower in compliance with Section 4.06 below are expressly excluded from this clause (xv);
(xvxvi) fail to file its own tax returns or (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and it not required to file tax returns consolidated with those of its parent under applicable Legal Requirements) or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixix) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (Rexford Industrial Realty, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby representsrepresents and warrants to Borrower’s knowledge, warrantswithout any knowledge imputed to Borrower by operation of law through any member or manager of Borrower prior to the date hereof, that it has not, and Borrower hereby covenants and agrees that it has shall not and shall nothereafter:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate terminate, divide (whether pursuant to a “plan of division” or other similar arrangement) or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of LenderAdministrative Agent, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of LenderAdministrative Agent;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof;
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xiv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xv) fail to file its own tax returns or unless Borrower is a disregarded entity for Federal income tax returns consolidated with those of its parent purposes or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations, provided that sufficient revenue is generated from the Property to maintain such capital, and provided that in no event shall this Section 4.03(a)(xix) require any Affiliate of Borrower to make any equity contribution or loan money to Borrower;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person, except with respect to “Cottonwood” which Administrative Agent hereby approves; or
(xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Cottonwood Communities, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged PropertyFacility and the Borrower Collateral, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the ImprovementsFacility, and such incidental personal property as may be necessary for the construction and operation of the ImprovementsFacility;
(iii) sell, lease (except pursuant to the Facility Lease or as otherwise permitted under this Agreement), exchange, convey, transfer, mortgage, assign, pledge or encumber, either voluntarily or involuntarily, or enter into an agreement to do so, of any right, title or interest of Borrower in or to the Borrower Collateral or any portion thereof;
(iv) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(ivv) fail to preserve its existence as an entity a limited liability company duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or the State of Delaware and duly qualified to do business in the State of New York;
(vi) without the prior written consent of LenderAdministrative Agent, amend, modifyamend or modify (except as reasonably required to effectuate Permitted Transfers), terminate or fail to comply with the special purpose provisions of Borrower’s organizational documents;
(vvii) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of LenderAdministrative Agent;
(viviii) have any member other than the Borrower Managing Member, the Borrower Non-Managing Members or Permitted Transferees or be owned or controlled, directly or indirectly, by any Person, other than 100%, direct or indirect, ownership and control by the Principals and Borrower Profit Participant, and any other Person that is a transferee in a Permitted Transfer;
(ix) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(viix) incur any Indebtedness other than Permitted Indebtedness;
(viiixi) except pursuant to the Primary Completion Guaranty or the Secondary Completion Guaranty, allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ixxii) fail to maintain its records, books of account and bank accounts and financial statements separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to auditPerson, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property Borrower Collateral is actually owned by Borrower;
(xxiii) except for the Development Agreement, the Equity Participation Agreement and the operating agreement of Borrower, enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor Borrower or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or GuarantorBorrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xixiv) seek dissolution or winding up, in whole or in part;
(xiixv) fail to use reasonable efforts to correct any known misunderstandings regarding the separate identity of Borrower;
(xiiixvi) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible responsible; or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xivxvii) make any loan loans or advances to any third partyparty (other than the Facility Lessee Loan) or pay any fees (other than the Developer Fee, including the asset management fee described in the Equity Participation Agreement, fees payable to Administrative Agent or the Lenders, as expressly contemplated by the Project Budget or permitted under the Collateral Account Pledge Agreement), to any shareholder, partner, member, principal or Affiliate of Borrower, Principal or any shareholder, partner, member, principal or Affiliate thereof;
(xvxviii) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvixix) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof); provided that in performing its duties under the Development Agreement, Xxxxxx and XxXxxxx LLC may use its own name and letterhead but will use commercially reasonable efforts to insure that it identity and the identity of the Borrower are kept separate and distinct;
(xviixx) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantormember) any overhead for common employeesoverhead, shared office space or other overhead and administrative expenses;
(xviiixxi) allow Borrower to have any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operationsemployees;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xxxxii) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and of any proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxixxiii) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixxiv) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions .
(b) Borrower further represents, warrants, covenants and agrees that, prior to the Final Completion of this Section 4.03 the Facility each Principal shall not operate devote such time and attention to prohibit the business of the Borrower from entering into Swap Agreements otherwise permitted as is reasonably expected to cause Borrower to timely perform its obligations hereunder and under this Agreementthe Loan Documents and the Project Documents to which Borrower is a party.
Appears in 1 contract
Samples: Loan and Security Agreement (Varian Medical Systems Inc)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of Lender, other than such transfers, dispositions and changes expressly permitted under the terms of the Loan Documents;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or to comply in all material respects with the provisions of Borrower’s organizational documents (which organizational documents shall not be terminated without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents);
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in the Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereofthereof (excluding any contribution or reimbursement agreement among any of Borrower, Affiliate Borrower and any Guarantor in connection with the Loan);
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or (except pursuant to the Secured Guaranty and the Secured Guaranty Deed of Trust);
(xiv) allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower Borrower, except, (except A) in the case of any Guarantor, pursuant to the Loan Documents), and (B) in the case of 3175 Mission Oaks and 3233 Mission Oaks, pursuant to a guaranty agreement in favor of Lender covering Indebtedness of Borrower owed to Lender and any collateral provided to Lender as security for any such guaranty obligations;
(xivxv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof; provided, however, dividends, distributions and payments made by Borrower in compliance with Section 4.06 below are expressly excluded from this clause (xv);
(xvxvi) fail to file its own tax returns or (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and it not required to file tax returns consolidated with those of its parent under applicable Legal Requirements) or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixix) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (Rexford Industrial Realty, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP federal income tax basis of accounting procedures consistently applied and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof;
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xiv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xv) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checksreturns;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixxi) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 4.08 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Construction Loan and Security Agreement (Global Growth Trust, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged PropertyFacility and the Borrower Collateral, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the ImprovementsFacility, and such incidental personal property as may be necessary for the construction and operation of the ImprovementsFacility;
(iii) sell, lease (except pursuant to the Facility Lease or as otherwise permitted under this Agreement), exchange, convey, transfer, mortgage, assign, pledge or encumber, either voluntarily or involuntarily, or enter into an agreement to do so, of any right, title or interest of Borrower in or to the Borrower Collateral or any portion thereof;
(iv) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(ivv) fail to preserve its existence as an entity a limited liability company duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or the State of Delaware and duly qualified to do business in the State of New York;
(vi) without the prior written consent of LenderAdministrative Agent, amend, modifyamend or modify (except as reasonably required to effectuate Permitted Transfers), terminate or fail to comply with the special purpose provisions of Borrower’s organizational documents;
(vvii) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of LenderAdministrative Agent;
(viviii) have any member other than the Borrower Managing Member, the Borrower Non-Managing Members or Permitted Transferees or be owned or controlled, directly or indirectly, by any Person, other than 100%, direct or indirect, ownership and control by the Principals and Borrower Profit Participant, and any other Person that is a transferee in a Permitted Transfer;
(ix) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(viix) incur any Indebtedness other than Permitted Indebtedness;
(viiixi) except pursuant to the Primary Completion Guaranty or the Secondary Completion Guaranty, allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ixxii) fail to maintain its records, books of account and bank accounts and financial statements separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to auditPerson, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property Borrower Collateral is actually owned by Borrower;
(xxiii) except for the Development Agreement, the Equity Participation Agreement and the operating agreement of Borrower, enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor Borrower or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or GuarantorBorrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xixiv) seek dissolution or winding up, in whole or in part;
(xiixv) fail to use reasonable efforts to correct any known misunderstandings regarding the separate identity of Borrower;
(xiiixvi) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible responsible; or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xivxvii) make any loan loans or advances to any third partyparty (other than the Facility Lessee Loan) or pay any fees (other than the Developer Fee, including the asset management fee described in the Equity Participation Agreement, fees payable to Administrative Agent or the Lenders, as expressly contemplated by the Project Budget or permitted under the Collateral Account Pledge Agreement), to any shareholder, partner, member, principal or Affiliate of Borrower, Principal or any shareholder, partner, member, principal or Affiliate thereof;
(xvxviii) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvixix) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof); provided that in performing its duties under the Development Agreement, [****]*8 may use its own name and letterhead but will use commercially reasonable efforts to insure that it identity and the identity of the Borrower are kept separate and distinct;
(xviixx) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantormember) any overhead for common employeesoverhead, shared office space or other overhead and administrative expenses;
(xviiixxi) allow Borrower to have any Person to pay employees; 8* Certain information on this page has been omitted and filed separately with the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent Commission. Confidential treatment has been requested with respect to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreementomitted portions.
Appears in 1 contract
Samples: Loan and Security Agreement (Varian Medical Systems Inc)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of Lender, other than such transfers, dispositions and changes expressly permitted under the terms of the Loan Documents;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or to comply in all material respects with the provisions of Borrower’s organizational documents (which organizational documents shall not be terminated without the prior written consent of Lender, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents);
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in the Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereofthereof (excluding any contribution or reimbursement agreement among any of Borrower, Affiliate Borrower and any Guarantor in connection with the Loan);
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or (except pursuant to the Secured Guaranty and the Secured Guaranty Deed of Trust);
(xiv) allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower Borrower, except, (except A) in the case of any Guarantor, pursuant to the Loan Documents), and (B) in the case of 3001 Mission Oaks and 3233 Mission Oaks, pursuant to a guaranty agreement in favor of Lender covering Indebtedness of Borrower owed to Lender and any collateral provided to Lender as security for any such guaranty obligations;
(xivxv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof; provided, however, dividends, distributions and payments made by Borrower in compliance with Section 4.06 below are expressly excluded from this clause (xv);
(xvxvi) fail to file its own tax returns or (except to the extent that Borrower is treated as a “disregarded entity” for tax purposes and it not required to file tax returns consolidated with those of its parent under applicable Legal Requirements) or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixix) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Term Loan Agreement (Rexford Industrial Realty, Inc.)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than directly through Subsidiaries, or indirectly, the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Real Property, making mortgage loans or mezzanine loans, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(iviii) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of LenderAdministrative Agent, amend, modifymodify or terminate in any material respect, terminate or fail to comply with with, the provisions of Borrower’s organizational documents;; and
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(viiiv) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records; provided, books of account and bank accounts separate and apart from those however, that so long as no other provisions of the shareholdersLoan Documents are breached thereby, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into there shall be no limits on the incurrence of any contract Indebtedness or agreement with Guarantees by any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof;
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness Subsidiaries of Borrower (except pursuant to other than the Loan DocumentsPotential Mortgagors);
, (xivy) make any loan or advances to any third party, including any shareholder, partner, member, principal or Affiliate Borrower may enter into Guarantees of Borrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xv) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower its Subsidiaries, whether environmental indemnities, non-recourse carve-out guaranties, payment or any general partnerother guaranties, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or and (z) any other Person, there shall be no limits on Guarantor’s right to incur Indebtedness or allow any Person to identify Borrower as a department or division of that Person; or
(xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreementprovide Guarantees.
Appears in 1 contract
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged PropertyFacility and the Borrower Collateral, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the ImprovementsFacility, and such incidental personal property as may be necessary for the construction and operation of the ImprovementsFacility;
(iii) sell, lease (except pursuant to the Facility Lease or as otherwise permitted under this Agreement), exchange, convey, transfer, mortgage, assign, pledge or encumber, either voluntarily or involuntarily, or enter into an agreement to do so, of any right, title or interest of Borrower in or to the Borrower Collateral or any portion thereof;
(iv) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(ivv) fail to preserve its existence as an entity a limited liability company duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or the State of Delaware and duly qualified to do business in the State of New York;
(vi) without the prior written consent of LenderAdministrative Agent, amend, modifyamend or modify (except as reasonably required to effectuate Permitted Transfers), terminate or fail to comply with the special purpose provisions of Borrower’s organizational documents;
(vvii) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of LenderAdministrative Agent;
(viviii) have any member other than the Borrower Managing Member, the Borrower Non-Managing Members or Permitted Transferees or be owned or controlled, directly or indirectly, by any Person, other than 100%, direct or indirect, ownership and control by the Principals and Borrower Profit Participant, and any other Person that is a transferee in a Permitted Transfer;
(ix) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(viix) incur any Indebtedness other than Permitted Indebtedness;
(viiixi) except pursuant to the Primary Completion Guaranty or the Secondary Completion Guaranty, allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ixxii) fail to maintain its records, books of account and bank accounts and financial statements separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to auditPerson, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property Borrower Collateral is actually owned by Borrower;
(xxiii) except for the Development Agreement, the Equity Participation Agreement and the operating agreement of Borrower, enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor Borrower or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or GuarantorBorrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xixiv) seek dissolution or winding up, in whole or in part;
(xiixv) fail to use reasonable efforts to correct any known misunderstandings regarding the separate identity of Borrower;
(xiiixvi) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible responsible; or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xivxvii) make any loan loans or advances to any third partyparty (other than the Facility Lessee Loan) or pay any fees (other than the Developer Fee, including the asset management fee described in the Equity Participation Agreement, fees payable to Administrative Agent or the Lenders, as expressly contemplated by the Project Budget or permitted under the Collateral Account Pledge Agreement), to any shareholder, partner, member, principal or Affiliate of Borrower, Principal or any shareholder, partner, member, principal or Affiliate thereof;
(xvxviii) fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checks;
(xvixix) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof); provided that in performing its duties under the Development Agreement, Xxxxxx & XxXxxxx LLC may use its own name and letterhead but will use commercially reasonable efforts to insure that it identity and the identity of the Borrower are kept separate and distinct;
(xviixx) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantormember) any overhead for common employeesoverhead, shared office space or other overhead and administrative expenses;
(xviiixxi) allow Borrower to have any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operationsemployees;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xxxxii) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and of any proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such action;
(xxixxiii) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxiixxiv) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions .
(b) Borrower further represents, warrants, covenants and agrees that, prior to the Final Completion of this Section 4.03 the Facility each Principal shall not operate devote such time and attention to prohibit the business of the Borrower from entering into Swap Agreements otherwise permitted as is reasonably expected to cause Borrower to timely perform its obligations hereunder and under this Agreementthe Loan Documents and the Project Documents to which Borrower is a party.
Appears in 1 contract
Samples: Loan and Security Agreement (Varian Medical Systems Inc)
Operations of Borrower. (a) Without limitation of any other provisions of this Agreement or any other Loan Document, Borrower hereby represents, warrants, covenants and agrees that it has not and shall not:
(i) engage in any business or activity other than the acquisition, development, construction, ownership, leasing, operation and maintenance of the Mortgaged Property, and activities incidental thereto;
(ii) acquire or own any material asset other than the Property, the Improvements, and such incidental personal property as may be necessary for the construction and operation of the Improvements;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the prior written consent of LenderAdministrative Agent;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, or without the prior written consent of LenderAdministrative Agent, amend, modify, terminate or fail to comply with the provisions of Borrower’s organizational documents;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of LenderAdministrative Agent;
(vi) commingle its assets with the assets of any of its partner(s), members, shareholders, Affiliates, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in Borrower permitted hereunder and properly accounted for;
(vii) incur any Indebtedness other than Permitted Indebtedness;
(viii) allow any Person to pay its debts and liabilities or fail to pay its debts and liabilities solely from its own assets;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders, partners, members, principals and Affiliates of Borrower, the affiliates of a shareholder, partner or member of Borrower, and any other Person or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit, or if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Mortgaged Property is actually owned by Borrower;
(x) enter into any contract or agreement with any shareholder, partner, member, principal or Affiliate of Borrower, any Guarantor or any shareholder, partner, member, principal or Affiliate thereof, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any shareholder, partner, member, principal or Affiliate of Borrower or Guarantor, or any shareholder, partner, member, principal or Affiliate thereof;
(xi) seek dissolution or winding up, in whole or in part;
(xii) fail to correct any known misunderstandings regarding the separate identity of Borrower;
(xiii) hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the Indebtedness of Borrower (except pursuant to the Loan Documents);
(xiv) make any loan loans or advances to any third party, including any shareholder, partner, member, principal or Affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof;
(xv) if applicable, fail to file its own tax returns or tax returns consolidated with those of its parent or to use separate contracts, purchase orders, stationery, invoices and checksreturns;
(xvi) fail either to hold itself out to the public as a legal entity separate and distinct from any Person or to conduct its business solely in its own name in order not (i) to mislead others as to the entity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the Indebtedness of any third party (including any shareholder, partner, member, principal or affiliate of Borrower, or any shareholder, partner, member, principal or Affiliate thereof);
(xvii) fail to allocate fairly and reasonably among Borrower and any third party (including, without limitation, any Guarantor) any overhead for common employees, shared office space or other overhead and administrative expenses;
(xviii) allow any Person to pay the salaries of its own employees or fail to maintain a sufficient number of employees for its contemplated business operations;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable for the following 30 day period (including for obligations which are annual or semi-annual) in a business of its size and character and in light of its contemplated business operations;
(xx) file a voluntary petition or otherwise initiate proceedings seeking liquidation, reorganization or other relief under any Federal, state or foreign Debtor Relief Laws, for Borrower or any general partner, manager or managing member of Borrower, or consent to the institution of, or fail to contest in a timely and appropriate manner, and proceeding or petition under Debtor Relief Laws against Borrower or any general partner, manager or managing member of Borrower, or file a petition seeking or consenting to reorganization or relief of Borrower or seek or consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of Borrower or any general partner, manager or managing member of Borrower or of all or any substantial part of the properties and assets of Borrower or any general partner, manager or managing member of Borrower, or make any general assignment for the benefit of creditors of Borrower or any general partner, manager or managing member of Borrower, or admit in writing in any insolvency proceeding the inability of Borrower or any general partner, manager or managing member of Borrower to pay its debts generally as they become due or declare or effect a moratorium on Borrower or any general partner, manager or managing member of Borrower debt or take any action in furtherance of any such actiondue;
(xxi) share any common logo with or hold itself out as or be considered as a department or division of (x) any shareholder, partner, principal, member or Affiliate of Borrower, (y) any Affiliate of a shareholder, partner, principal, member or Affiliate of Borrower, or (z) any other Person, or allow any Person to identify Borrower as a department or division of that Person; or
(xxii) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of Borrower or the creditors of any other Person. The foregoing provisions of this Section 4.03 shall not operate to prohibit Borrower from entering into Swap Agreements otherwise permitted under this Agreement.
Appears in 1 contract
Samples: Term Loan and Security Agreement (KBS Growth & Income REIT, Inc.)
