Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows: (a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party. (b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes. (c) Such Issuer has requisite power and authority to own the applicable Properties and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable Properties, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Agreement. (d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law. (e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans. (f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer). (g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act. (h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. (i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading. (j) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury. (k) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing. (l) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons. (m) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations. (n) Such Issuer does not own any asset or property other than the applicable Properties and related Leases. (o) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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. (p) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party). (q) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence. (r) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person. (s) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes. (t) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Opinion. (u) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates. (v) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law. (w) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, of the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Limited Liability Company Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable PropertiesProperties and Mortgage Loans, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property or Mortgage Loans as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Limited Liability Company Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Issuers’ assets is and will, immediately following the execution and delivery of the Transaction Documents, be greater than the Issuers’ probable liabilities, including the maximum amount of their contingent liabilities or debts as such debts become absolute and matured. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) relying upon Section 3(c)(1) or Section 3(c)(7) of the 1940 Act as a basis for not registering under the 1940 Act; (c) required to be registered under the 1940 Act because of an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available to the such Issuer; (d) a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act; (e) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (cf) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(ji) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(kj) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(lk) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(ml) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(31445(0(3) of the Code and the related Treasury Regulations, including temporary regulations.
(nm) Such Issuer does not own any asset or property other than the applicable Mortgage Loans, Properties and related Leases.
(on) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(po) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(qp) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(rq) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(sr) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(ts) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird Xxxxx Xxxx LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Insolvency Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Insolvency Opinion.
(ut) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(vu) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(wv) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of GovernorsGovernor’s, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, of the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and Loans and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable PropertiesProperties and Loans, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and Loans and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property or Loans as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Issuers’ assets is and will, immediately following the execution and delivery of the Transaction Documents, be greater than the Issuers’ probable liabilities, including the maximum amount of their contingent liabilities or debts as such debts become absolute and matured. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Investment Company Act of 1940, as amended (the “Investment Company Act”) and the rules and regulations thereunder or (b) required to be registered under the 1940 Investment Company Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Investment Company Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (the “Xxxx-Xxxxx Act”).
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(j) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(k) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(l) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(m) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations.
(n) Such Issuer does not own any asset or property other than the applicable Loans, Owned Properties and related Leases.
(o) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(p) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(q) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(r) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(s) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(t) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Weil, Gotshal & Xxxxxx & Bird LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Opinion.
(u) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(v) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(w) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Samples: Master Indenture (Essential Properties Realty Trust, Inc.)
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, of the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Limited Liability Company Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable PropertiesProperties and Mortgage Loans, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property or Mortgage Loans as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Limited Liability Company Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Issuers’ assets is and will, immediately following the execution and delivery of the Transaction Documents, be greater than the Issuers’ probable liabilities, including the maximum amount of their contingent liabilities or debts as such debts become absolute and matured. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) relying upon Section 3(c)(1) or Section 3(c)(7) of the 1940 Act as a basis for not registering under the 1940 Act; (c) required to be registered under the 1940 Act because of an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available to the such Issuer; (d) a “covered fund” under the so-called Vxxxxxx Rule under the Dxxx-Fxxxx Xxxx Street Reform and Consumer Protection Act; (e) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (cf) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(ji) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(kj) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(lk) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under the Bankruptcy Code or any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(ml) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations.
(nm) Such Issuer does not own any asset or property other than the applicable Mortgage Loans, Properties and related Leases.
(on) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(po) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(qp) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(rq) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(sr) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(ts) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird DLA Piper LLP (US) in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Insolvency Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Insolvency Opinion.
(ut) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(vu) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(wv) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, of the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Limited Liability Company Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable PropertiesProperties and Mortgage Loans, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect affect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property or Mortgage Loans as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Limited Liability Company Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Issuers’ assets is and will, immediately following the execution and delivery of the Transaction Documents, be greater than the Issuers’ probable liabilities, including the maximum amount of their contingent liabilities or debts as such debts become absolute and matured. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) required to be registered under the 1940 Act; (c) relying on Section 3(c)(1) or (3(c)(7) of the 1940 act as a basis for not registering under the 1940 Act; (d) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (ce) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Rule under the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(ji) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(kj) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(lk) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(ml) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(31445(0(3) of the Code and the related Treasury Regulations, including temporary regulations.
(nm) Such Issuer does not own any asset or property other than the applicable Mortgage Loans, Properties and related Leases.
(on) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(po) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(qp) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(rq) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(sr) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(ts) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird Xxxxx Xxxx LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Insolvency Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Insolvency Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Insolvency Opinion.
(ut) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(vu) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(wv) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of GovernorsGovernor’s, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable Properties, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Vxxxxxx Rule under the XxxxDxxx-Xxxxx Fxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(j) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(k) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(l) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(m) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations.
(n) Such Issuer does not own any asset or property other than the applicable Properties and related Leases.
(o) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(p) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(q) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(r) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(s) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(t) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird Cxxxxxxx Chance US LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Opinion.
(u) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(v) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(w) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
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Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable Properties, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Vxxxxxx Rule under the XxxxDxxx-Xxxxx Fxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(j) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(k) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(l) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(m) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations.
(n) Such Issuer does not own any asset or property other than the applicable Properties and related Leases.
(o) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(p) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(q) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(r) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(s) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(t) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx Axxxxx & Bird LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Opinion.
(u) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(v) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(w) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
Representations and Warranties with Respect to the Issuers. Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:
(a) Such Issuer is a limited liability company partnership duly created and validly existing in good standing under the laws of, and is duly qualified to do business in, the State of Delaware and has full power, authority and legal right to own its properties and conduct its business as presently owned or conducted, to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.
(b) The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Issuer LLC Operating Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any material indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.
(c) Such Issuer has requisite power and authority to own the applicable Properties and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable Properties, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property as security for the Notes. The sole business of such Issuer is as set forth in the applicable Issuer LLC Operating Agreement.
(d) The Indenture and the other Transaction Documents to which it is a party have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Issuer has no employee benefit plans (as defined in Section 3(3) of ERISA) and is not required to make any contributions to any Plansemployee benefit plans.
(f) Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).
(g) Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.
(h) No Issuer is, and neither the sale of the Notes in the manner contemplated by the Private Placement Memorandum nor the activities of any Issuer pursuant to this Agreement Indenture will cause such Issuer to be, (a) an “investment company” or under the control of an “investment company” as defined in the 1940 Act and the rules and regulations thereunder or (b) required to be registered under the 1940 Act. Each Issuer is relying on not an “investment company” as defined in Section 3(a)(1) of the 1940 Act or will qualify for the exclusion or exemption from the definition of “investment company” contained in Section 3(c)(53(c)(5)(C) of the 1940 Act, although there may be additional exclusions or exemptions availableavailable to the Issuers. Each Issuer does not constitute a “covered fund” under the so-called Xxxxxxx Vxxxxxx Rule under the XxxxDxxx-Xxxxx Fxxxx Xxxx Street Reform and Consumer Protection Act.
(i) The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.
(j) The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.
(k) The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.
(l) Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.
(m) Such Issuer is not a “foreign person” within the meaning of Section 1445(f)(3) of the Code and the related Treasury Regulations, including temporary regulations.
(n) Such Issuer does not own any asset or property other than the applicable Properties and related Leases.
(o) Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) 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.
(p) Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).
(q) Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.
(r) Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.
(s) Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.
(t) All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Xxxxxx & Bird Dentons US LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “Non-consolidation Opinion”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Non-Consolidation Opinion has complied with all of the assumptions made with respect to it in such Non-Consolidation Opinion.
(u) Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances. Upon the execution of any Account Control Agreement, the Indenture Trustee has a first priority perfected security interest in any accounts to which the Account Control Agreement relates.
(v) As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act of 2001 (including the anti-terrorism provisions thereof) (the “Patriot Act”), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “Embargoed Person”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.
(w) No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.
Appears in 1 contract
