Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants: (i) maintain books and records and bank accounts separate from those of any other Person; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person; (iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements; (ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement; (x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers; (xi) correct any known misunderstanding as to its separate identity; (xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement); (xiii) not make loans or advances to any other Person; (xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower; (xv) pay the salaries of its own employees, if any, only from its own funds; (xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower; (xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower; (xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and (xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 2 contracts
Samples: Loan Agreement (Healthcare Trust, Inc.), Loan Agreement (Healthcare Trust, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return returns of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except as permitted under Section 7.06 and under the Parent Cash Management System and except on an arm’sarm's-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name;
(x) not commingle its assets or funds with those of any other Person Person, other than as (A) permitted or required or permitted by this AgreementAgreement and (B) contemplated by the Parent Cash Management System;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person Person, other than with respect to the pledge of its assets to secure the debt indebtedness of the other Borrowers;Borrowers hereunder and as described in Section 7.02(d).
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers limited guarantees, indemnities and the guarantees and indemnities pledge of assets set forth in the Loan Credit Documents and in the Environmental Hazardous Materials Indemnity Agreement)) and as permitted under Section 7.06;
(xiiixiv) not make loans or advances to any other PersonPerson except as contemplated by the Parent Cash Management System;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow or from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borroweradvances permitted under Section 7.06;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own fundsfunds or from advances permitted under Section 7.06;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 2 contracts
Samples: Credit Agreement (Brookdale Senior Living Inc.), Credit Agreement (Brookdale Senior Living Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and JV Subsidiary covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantsthat:
(a) It shall: (i) maintain books and records prepare separate financial reports and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person Person, and will not have its assets listed on any the financial statement of any other Person; except provided, however, that each Borrower’s its assets may be included in on a consolidated financial statement of its Affiliate;
parent if: (viA) other than with respect such consolidated financial statement shall contain a footnote to the consolidated tax return of its Affiliateseffect that JV Subsidiary’s assets are owned by JV Subsidiary, and other than with respect to a “disregarded entity” (whose income is reported B) such assets shall be listed on the tax return of its owner), prepare and file JV Subsidiary’s own balance sheet; (ii) maintain its own tax returns books and records and bank accounts separate from those of any Person to the extent required by Requirements other Person; (iii) shall not commingle or pool any of Law, its funds and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared other assets with Affiliates, constituents, or owners, or any guarantors those of any of their respective obligationsAffiliate, any member or any Affiliate of any member or any other Person, and it shall hold all of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
its assets in its own name; (viiiiv) not enter into any transaction with any Person owned guarantee, become obligated for, or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would hold itself or its credit out to be responsible for, or available for unaffiliated third partiesto satisfy, and pursuant to written, enforceable agreements;
(ix) not commingle its assets the debts or funds with those obligations of any other Person or control the decisions or actions respecting the daily business or affairs of any other Person (except as provided for in or permitted under the Transaction Documents); (v) not acquire equity interests of any Affiliate or of any member or any of its Affiliates (other than as required or permitted by this Agreement;
(x) Permitted Assets and except as otherwise provided for in or permitted under this JV Subsidiary LLC Agreement or the other Transaction Documents); (vi) maintain its assets in such a manner that it is not difficult to segregate, identify or ascertain such assets; (vii) shall not issue any other Loan Documents, minority equity interests; (viii) not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent except as otherwise contemplated by the Transaction Documents; and Lenders in connection (ix) maintain arm’s-length relationships with the Loan. Failure each of any Borrower to comply its Affiliates and not enter into business transactions with any of them unless such transactions are on terms and conditions that are not materially more or less favorable to such Affiliate than the foregoing covenants terms and conditions that would be expected to have been obtained, under similar circumstances, from Persons who are not Affiliates; it being understood that the entering into of any Transaction Document and the performance thereof in accordance with its terms satisfies such standard.
(b) It has done, or caused to be done, and shall do, all things necessary to observe all Delaware limited liability company formalities and other organizational formalities, and preserve its existence.
(c) JV Subsidiary shall not be consensually merged or legally consolidated with any other covenants contained in this Agreement Person (other than certain Affiliates for financial reporting and federal tax purposes).
(d) JV Subsidiary shall not affect the status of such Borrower as a separate legal entitypermit or suffer to exist any Liens on its assets other than Permitted Encumbrances.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (APT Sunshine State LLC), Limited Liability Company Agreement (APT Sunshine State LLC)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each of Borrower represents, and Operating Lessee represents and warrants and covenants that in the conduct of its operations since its organization it each of Borrower and Operating Lessee has observed, observed certain separateness covenants and from the date hereof will observe the following covenants that it will continue to observe(collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
its’ Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s, or Operating Lessee’s (vi) other than with respect as applicable), assets and credit are not available to satisfy the consolidated tax return of its Affiliates, debts and other than with respect to a “disregarded entity” obligations of such Affiliate or any other Person; (whose income is reported on the tax return of its owner), vii) prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viiiix) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (xi) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxii) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
, except as expressly permitted in this Agreement; (xivxvi) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
Borrower or Operating Lessee; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower or Operating Lessee, as applicable, to act at all times with respect to such Borrower or Operating Lessee, consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement Borrower or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the LoanOperating Lessee. Failure of any Borrower or Operating Lessee to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower any Borrower, Operating Lessee or Employer Company as a separate legal entity.
Appears in 2 contracts
Samples: Loan Agreement (Strategic Hotels & Resorts, Inc), Loan Agreement (Strategic Hotels & Resorts, Inc)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and The LLC covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantsthat:
(a) It shall: (i) maintain books and records prepare separate financial reports and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person Person, and will not have its assets listed on any the financial statement of any other Person; except provided, however, that each Borrower’s its assets may be included in on a consolidated financial statement of its Affiliate;
parent if: (viA) other than with respect such consolidated financial statement shall contain a footnote to the consolidated tax return of its Affiliateseffect that the LLC’s assets are owned by the LLC, and other than with respect to a “disregarded entity” (whose income is reported B) such assets shall be listed on the tax return of its owner), prepare and file LLC’s own balance sheet; (ii) maintain its own tax returns books and records and bank accounts separate from those of any Person to the extent required by Requirements other Person; (iii) not commingle or pool any of Law, its funds and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared other assets with Affiliates, constituents, or owners, or any guarantors those of any of their respective obligationsAffiliate, any member or any Affiliate of any member or any other Person, and it shall hold all of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
its assets in its own name; (viiiiv) not enter into any transaction with any Person owned guarantee, become obligated for, or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would hold itself or its credit out to be responsible for, or available for unaffiliated third partiesto satisfy, and pursuant to written, enforceable agreements;
(ix) not commingle its assets the debts or funds with those obligations of any other Person or control the decisions or actions respecting the daily business or affairs of any other than Person (except as required provided for in or permitted by this Agreement;
under the Transaction Documents); (xv) not acquire equity interests of any Affiliate or of any Member or any of its Affiliates (other membership interests in entities that hold Permitted Assets and except as otherwise provided for in or permitted under this LLC Agreement or the Transaction Documents); (vi) maintain its assets in such a manner that it is not difficult to segregate, identify or ascertain such assets; (vii) not issue any other Loan Documents, minority equity interests; (viii) not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent except as otherwise contemplated by the Transaction Documents; and Lenders in connection (ix) maintain arm’s-length relationships with the Loan. Failure each of any Borrower to comply its Affiliates and not enter into business transactions with any of them unless such transactions are on terms and conditions that are not materially more or less favorable to such Affiliate than the foregoing covenants terms and conditions that would be expected to have been obtained, under similar circumstances, from Persons who are not Affiliates; it being understood that the entering into of any Transaction Documents and the performance thereof in accordance with its terms satisfies such standard.
(b) It has done, or caused to be done, and shall do, all things necessary to observe all Delaware limited liability company formalities and other organizational formalities, and preserve its existence.
(c) The LLC shall not be consensually merged or legally consolidated with any other covenants contained in this Agreement Person (other than certain Affiliates for financial reporting and federal tax purposes).
(d) The LLC shall not affect the status of such Borrower as a separate legal entitypermit or suffer to exist any Liens on its assets other than Permitted Encumbrances.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (APT Sunshine State LLC), Limited Liability Company Agreement (APT Sunshine State LLC)
Separateness Covenants. In order Each of Holdings and the Borrower agrees that it will, and will cause the Subsidiary Guarantors to (as applicable):
(a) except for properties, or interests therein, which such Loan Party has sold and for which such Loan Party has no continuing obligations or liabilities, not own any assets other than with respect to each Loan Party, the direct or indirect ownership interests in any Fiber Network Assets, Customer Contracts, other property interests and related property in respect of the Collateral (including Equity Interests in subsidiaries, the IRU Agreements, the Closing Date Contributed Equipment and the Closing Date Contributed Contracts) and any other relevant assets used for the Uniti Fiber Business (the “Underlying Interests”); Uniti – Bridge Loan and Security Agreement #97751373v29
(b) not engage in any material business, directly or indirectly, other than the ownership, management and operation of the Underlying Interests, as applicable;
(c) except as permitted by Section 7.4, not enter into any contract or agreement with any Related Party except in the ordinary course of business and upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with third parties other than a Related Party;
(d) [reserved];
(e) [reserved];
(f) remain solvent and pay its own liabilities, indebtedness, and obligations of any kind from its own separate assets as the same shall become due, and maintain adequate capital for its obligations in light of its contemplated business operations; provided, however, that the foregoing shall not require any equityholder of a Loan Party to make additional capital contributions or provide other financial support to such Loan Party;
(g) do all things necessary to preserve its existence and not amend, modify or otherwise change its articles of incorporation, by-laws, articles of organization, operating agreement or other organizational documents in any manner with respect to the matters set forth in this Article VI except as otherwise permitted under such organizational documents;
(h) continuously maintain its status as qualifications to do business in all jurisdictions necessary to carry on its business, except where the failure to so qualify would not reasonably be expected to have a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:Material Adverse Effect;
(i) [reserved];
(j) maintain books and records and bank accounts separate from those of its Related Parties and any other PersonPerson (other than the Loan Parties) and maintain consolidated financial statements of Holdings, the Borrower and its subsidiaries that are separate from their Affiliates (it being understood that the Loan Parties’ assets may also be included in consolidated financial statements of their Affiliates);
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(ivk) hold itself out to creditors and the public as a legal entity separate and distinct from any other entityPerson (including any of its Related Parties), and not as a department or division of any Person (other than the other Loan Parties) and will correct any misunderstandings to its Knowledge regarding its existence as a separate legal entity (it being understood that the Loan Parties are expressly permitted to do business as, and use trade names, assumed names and/or fictitious business names referring to themselves as “Uniti Fiber” and similar nomenclature);
(vl) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate[reserved];
(vim) other than allocate, fairly and reasonably any shared expenses with respect to the consolidated tax return of its Affiliates, Related Parties (including shared office space); Uniti – Bridge Loan and other than with respect to a “disregarded entity” Security Agreement #97751373v29
(whose income is reported on the tax return of its owner), prepare n) use invoices and file checks bearing its own tax returns name and separate from those of any Person Related Party (it being understood that the Loan Parties are expressly permitted to use common stationery, invoices and checks among the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of LawLoan Parties);
(viio) allocate and charge fairly and file all such separate tax returns with respect to a Loan Party (or consolidated tax returns for two or more Loan Parties, if applicable) that are required under applicable law except where failure to so file would not reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliatebe expected to have a Material Adverse Effect;
(viiip) not seek, acquiesce in, or suffer or permit, its liquidation, dissolution or winding up, in whole or in part;
(q) except as otherwise permitted in the Transaction Documents (including a Permitted Change of Control or a Permitted Reorganization), not enter into any transaction with of merger, consolidation, amalgamation, sell all or substantially all of its assets or acquire by purchase or otherwise all or substantially all of the business or assets (unless in the case of an asset acquisition, all such assets consist of Fiber Network Assets, Customer Contracts and related property) of or any Person owned stock or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third partiesbeneficial ownership of, and pursuant to written, enforceable agreementsany Person;
(ixr) not commingle or permit to be commingled, its funds or other assets or funds with those of any other Person (other than than, with respect to the Loan Parties, each other Loan Party, or as required or permitted may be held by this the Manager, as agent, for the Borrower pursuant to the terms of the Management Agreement);
(xs) except as [reserved];
(t) not hold itself out to have guaranteed or otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay be responsible for the debts or obligations of any other Person (other than with respect to any obligations of another Loan Party, including the Obligations);
(u) not guarantee or otherwise become liable on any obligation for borrowed money (other than the Obligations) of any Related Party (other than the other Loan Parties) that remains outstanding;
(v) not pledge of its assets to secure the debt obligations for borrowed money of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations Related Party (other than the co-Borrowers and the guarantees and indemnities set forth in the other Loan Documents and in the Environmental Indemnity AgreementParties);
(xiiiw) not make loans except for funds deposited into the Pledged Accounts in accordance with the Transaction Documents, hold all of its assets solely in its own name or advances to any other Personin the name of another Loan Party;
(xivx) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the observe all limited liability company or other applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligationcorporate formalities; and
(xixy) except as otherwise provided in this Agreement not form, acquire or hold Equity Interests in any other Loan Documents, not pledge its assets for the benefit of any other Person Subsidiary (other than to Administrative Agent another Loan Party or otherwise permitted hereunder). Uniti – Bridge Loan and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Security Agreement shall not affect the status of such Borrower as a separate legal entity.#97751373v29
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Uniti Group Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:“Separateness Provisions”):
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, other than that certain Agreement with TRT NOIP CEVA Lease Holdco LLC, with respect to rent payments, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and, to the extent Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name;
(x) not commingle its assets or funds with those of any other Person Person, except as contemplated by the Loan Documents with respect to other than as required or permitted by this AgreementBorrowers;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than Person, except as contemplated by the Loan Documents with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities as set forth in the Loan Documents with respect to (x) other Borrowers and in (y) the Environmental Guaranty and the Hazardous Materials Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) intentionally omitted;
(xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Property after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in Sections 5.2(a), (b) or (c) above or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization the Closing Date it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:“Separateness Provisions”):
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, other than that certain agreement with TRT NOIP GT Lease Holdco LLC, a Delaware limited liability company, with respect to rent payments, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than substantially similar to those that would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and, to the extent Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name;
(x) not commingle its assets or funds with those of any other Person Person, except as contemplated by the Loan Documents with respect to other than as required or permitted by this AgreementBorrowers;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than Person, except as contemplated by the Loan Documents with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities as set forth in the Loan Documents with respect to (x) other Borrowers and in (y) the Environmental Guaranty and the Hazardous Materials Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) intentionally omitted;
(xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Property after the payment of all operating expenses and debt service, and shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in Sections 5.2(a), (b) or (c) above or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Dividend Capital Total Realty Trust Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it organization, such Borrower has observed, and covenants that it will (except as may otherwise be required under this Agreement or the Loan Documents) continue to observeobserve the following covenants (collectively, the following covenants:“Separateness Provisions”):
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Applicable Law, and pay any taxes required to be paid by Requirements of Applicable Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documentsfor the Loan, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain not make any distributions to its members or partners which would knowingly result in Borrower not having adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Howard Hughes Corp)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Borrower except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower Xxxxxxxx consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Cornerstone Core Properties REIT, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return returns of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except as permitted under Section 7.06 and under the Parent Cash Management System and except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name;
(x) not commingle its assets or funds with those of any other Person Person, other than as (A) permitted or required or permitted by this AgreementAgreement and (B) contemplated by the Parent Cash Management System;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person Person, other than with respect to the pledge of its assets to secure the debt indebtedness of the other Borrowers;
(xi) correct any known misunderstanding Borrowers hereunder and as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth described in the Loan Documents and in the Environmental Indemnity AgreementSection 7.02(d);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants agrees that in the conduct of its operations since its organization and so long as any obligation under the Loan is outstanding it has observed, observed and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entityPerson;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, applicable law and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfluids;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the its best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, and Operating Lessee represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
its’ Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s, or Operating Lessee’s (vi) as applicable), assets and credit are not available to satisfy the debts and other obligations of such Affiliate (other than with respect to the consolidated tax return of its Affiliates, and Borrower) or any other than with respect to a “disregarded entity” Person; (whose income is reported on the tax return of its owner), vii) prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viiiix) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (xi) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxii) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than in connection with respect to the pledge of its assets to secure the debt of the other Borrowers;
Loan; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers (other than Borrower) to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
, except as expressly permitted in this Agreement; (xivxvi) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
Borrower or Operating Lessee; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower Borrower, or Operating Lessee, as applicable, to act at all times with respect to such Borrower Borrower, or Operating Lessee, consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement , or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the LoanOperating Lessee. Failure of any Borrower or Operating Lessee to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such any Borrower or Operating Lessee as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its the Company’s operations since its organization it and so long as any obligation under the Note Documents is outstanding, the Company has observed, observed and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrowerthe Company’s assets may be included in a consolidated financial statement statements of its AffiliateAffiliates so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Company from such Affiliate and to disclose the separate nature of the Company’s indebtedness;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) except as permitted in the Note Documents, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for in comparable transactions with unaffiliated third partiesparties (or, if no comparable transactions with unaffiliated third parties would be available, then on terms that are determined by the Managers to be fair in light of all factors considered by the Managers to be pertinent to the Company), and pursuant to written, enforceable agreements;
(ix) conduct its own business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person (other than with respect to the Crest Obligation and the Company’s pledge of its assets to secure the debt of general partner interest in the other BorrowersPartnership as set forth in the Note Documents);
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than with respect to the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementCrest Obligation);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xv) maintain a sufficient number of employees or engaged independent contractors in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;the Company; and
(xvii) cause the managersofficers, officersManagers, employees, agents and other representatives of each Borrower the Company to act at all times with respect to such Borrower the Company consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) the Company except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in extent required or permitted by the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Note Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower the Company to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower the Company as a separate legal entity.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Cheniere Pipeline GP Interests, LLC)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borroweraffiliate, each Borrower represents, warrants and covenants that in the conduct of its each Required SPE’s operations since its organization it has observedhas, and covenants that it will each Required SPE shall continue to observe, the following covenants:covenants (collectively, the “Separateness Provisions”):
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entityPerson;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliateaffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Borrower from such affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Applicable Law, and pay any taxes required to be paid by Requirements of Applicable Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliateaffiliates;
(viii) other than capital contributions and distributions permitted under the terms of its organizational documents, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name;
(x) not commingle its assets or funds with those of any other Person other than Person, except as expressly required or permitted by this Agreementthe Loan Documents;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect except as permitted under and pursuant to the pledge of its assets to secure the debt terms of the other BorrowersLoan Documents;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers affiliate to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of from its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business operation and pay the salaries of its own employees, if any, only from its own funds;; and
(xvixvii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loanoperations. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Revolving Loan Agreement (RREEF Property Trust, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of amend, modify or otherwise change its charter, bylaws or other organizational documents in any other Person;
(ii) maintain its assets material term or manner, or in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those which adversely affects the existence of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, Borrower or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or membersSubsidiary, as the case may be, unless as a single purpose entity without the prior written consent of Lender;
(ii) permit any shareholder or other equity holder of Borrower or any such an obligation is fully subordinated Subsidiary to amend, modify or otherwise change the charter, bylaws or other organizational documents of Borrower or any such Subsidiary, as the case may be, in any material term or manner, or in a manner which adversely affects the existence of Borrower or any such Subsidiary, as the case may be, as a single purpose entity without the prior written consent of Lender;
(iii) to the Indebtedness and will not constitute a claim against it in full extent permitted by law, liquidate or dissolve (or suffer any liquidation or dissolution), or enter into any transaction of merger or consolidation, or acquire by purchase or otherwise all or substantially all the event that cash flow in excess business or assets of, or any stock or other beneficial ownership of, any entity (other than the Permitted Subsidiaries) without the prior written consent of the amount required to pay the Indebtedness is insufficient to pay such obligation; andLender;
(xixiv) except as otherwise provided in this Agreement or in any other Loan Documentsguarantee, not pledge its assets for the benefit of, hold its credit as being available to satisfy, or otherwise become liable, on or in connection with, any obligation of any other Person person (other than as permitted pursuant to Administrative Agent and Lenders in connection Section 5.4(c)(i) or (ii)) without the prior written consent of Lender;
(v) without the prior written consent of Lender, own any asset other than (x) incidental personal property necessary for compliance with the Loan. Failure provisions of any Borrower to comply with any Section 5.3(o) and this Section 5.4(n) and (y)
(A) for the Borrower, (I) the shares of stock, partnership interests and membership interests in the Permitted Subsidiaries owned directly by Borrower; and (II) incidental personal property necessary for the ownership of the foregoing covenants or shares of stock, partnership interests and membership interests in such Permitted Subsidiaries; (B) for any Property Owners, the Fee Estate with respect to the Facility set forth opposite such Property Owner's name on Schedule I and other covenants contained in this Agreement shall not affect property designated as being owned by such Property Owner pursuant to the status Master Lease; (C) for any Property Operators (other than Fort Austin LP), the assets necessary for the business of operating the Facility set forth opposite such Borrower as a separate legal entity.Property Operator's name on Schedule I; (D) for any HCPI Lessees, the assets necessary for the business of leasing the property related to, and operation of, the HCPI Leased Facility set forth opposite such HCPI Lessee's name on Schedule 5.4(g)(iv);
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will (except as may otherwise be required under this Agreement or the Loan Documents) continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
; (vivii) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viiiix) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (xi) except as expressly permitted by the Loan Documents, not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxii) except as otherwise provided in this Agreement or in any other expressly permitted by the Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
; (xivxvi) except as expressly permitted by the Loan Documents, pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvii) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixviii) maintain not make any distributions to its members or partners which would result, at the time of such distribution, in Borrower not having adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
; and (xviixix) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity. Each of the representations, warranties and covenants made by a Borrower under this Section 8.1 are made by such Borrower with respect to itself only and with respect to that portion of the Property and Improvements owned by it (i.e., as to Xxxxxxxxx North, that portion of the Property and Improvements defined as the Fashion Center and the Office Tower, and as to Xxxxxxxxx South, that portion of the Property and Improvements defined as the Market Center).
Appears in 1 contract
Samples: Loan Agreement (Howard Hughes Corp)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person; LOAN AGREEMENT – Page 53[Heritage Wxxxx]
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Borrower except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Cornerstone Core Properties REIT, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each such Co-Borrower represents, hereby represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, observe the following covenants:
covenants (hereinafter collectively referred to as the “Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
Person other than as the Sponsor; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person person or entity and not have its assets listed on any financial statement of any other Person; person or entity except that each such Co-Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Co-Borrower from such Affiliate and to indicate that such Co-Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Applicable Law, and pay any taxes required to be paid by Requirements of Applicable Law;
; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
or as otherwise permitted under the Loan Documents; (viii) conduct business in its own name; (ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
; (xiixi) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixii) not make loans or advances to any other Person;
; (xivxiii) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xiv) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixv) maintain adequate capital liquidity in light of its contemplated business purpose, transactions and liabilities liabilities; and (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixvi) cause the managers, officers, employees, agents and other representatives of each such Co-Borrower to act at all times with respect to such Co-Borrower consistently and in furtherance of the foregoing and in the best interests of such Co-Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Fuelcell Energy Inc)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Borrower from such Affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) if Borrower has any employees, allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
(xiiixiv) not make loans or advances to any other PersonPerson other than in connection with the Master Lease;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) if Borrower employs any employee, maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, if any, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of applicable Law, and pay any taxes required to be paid by Requirements of applicable Law;
; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and use invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixiv) not make loans or advances to any other Person;
; (xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees, if any, in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvi) maintain xvii)maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner member to make additional capital contributions to any Borrower;
; (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
Borrower and (xviiixix) except as expressly provided in without the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify unanimous consent of all of its partners, officers, directors or members, as the case may beapplicable, unless such an obligation is fully subordinated to the Indebtedness has not and will not constitute (A) file a claim against it in bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any Debtor Relief Law or otherwise cause or permit any Insolvency Proceedings; (B) seek or consent to the event that cash flow in excess appointment of the amount required to pay the Indebtedness is insufficient to pay such obligationa receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for itself or all or any portion of its property; and
(xixC) except as otherwise provided in this Agreement or in make any other Loan Documents, not pledge its assets assignment for the benefit of its creditors; or (D) take any other Person other than action that might cause such entity to Administrative Agent and Lenders become insolvent, which shall be deemed conclusively proven in connection with the Loanevent an Insolvency Proceeding occurs. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity. Borrower agrees to incorporate the covenants contained in this Section into its Organizational Documents, and that Agent shall be a third-party beneficiary with respect to such covenants contained therein.
Appears in 1 contract
Samples: Construction Loan Agreement (Cottonwood Multifamily Opportunity Fund, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
person or entity; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and and, except as required or permitted under GAAP, not have its assets listed on any financial statement of any other Personperson or entity; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person person or entity to the extent required by Requirements of Applicable Law, and pay any taxes required to be paid by Requirements of Applicable Law;
; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third partiescommercially reasonable terms, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required person or permitted by this Agreement;
entity; (xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
person or entity; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in pursuant to the Loan Documents Documents, Taubman’s guaranty of Borrower’s obligations under the Ground Lease and the Anchor Lease, and Taubman’s guaranty of Borrower’s obligations in connection with the Environmental Indemnity Agreementdevelopment of the Project);
; (xiiixiv) not make loans or advances to any other Person;
person or entity (xivother than loans or advances to tenants in an amount not to exceed $250,000 in the aggregate); (xv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose or engage a property manager and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from and to the extent of its own funds;
; provided, however, that this provision shall not be deemed to require any direct or indirect equity owner of Borrower to make any loans or capital contributions; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)of its own funds; provided, however, that the foregoing shall not require any equity owner to make any loans or additional capital contributions to any Borrower;
; (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act comply at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the LoanSection 9.15 hereof. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section 9.14 or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) except as set forth on Schedule 6.17, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Borrower except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks, except to the extent Operating Tenant or Property Manager conducts business on Borrower’s behalf to with respect to the Project and in accordance with the terms and conditions of this Agreement;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement, it being understood that nothing in this Section 6.17(c)(x) shall be construed to prohibit Borrower from making distributions to the extent permitted in Section 8.13;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers Borrower to guarantee or pay its the obligations of Borrower (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and funds; provided, however, that nothing contained herein shall be deemed to require capital contributions of the foregoing shall not require any owners of any Borrower to make additional capital contributions the extent of any insufficiency in revenue to any Borrowerpay such liabilities or expenses;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of each Borrower from such Affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and to the extent any Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxi) except as otherwise provided in this Agreement or in any other contemplated by the Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixiv) not make loans or advances to any other Person;
; (xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvi) intentionally omitted; and (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Properties after the payment of all operating expenses and debt service on the Loan, and shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the LoanBorrowers. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Construction Loan Agreement (DC Industrial Liquidating Trust)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;assets; [Summit Healthcare] 56
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by applicable Requirements of Law, and pay any taxes required to be paid by applicable Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Borrower except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;; [Summit Healthcare] 57
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and JV Subsidiary covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantsthat:
a. It shall: (i) maintain books and records prepare separate financial reports and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person Person, and will not have its assets listed on any the financial statement of any other Person; except provided, however, that each Borrower’s its assets may be included in on a consolidated financial statement of its Affiliate;
parent if: (viA) other than with respect such consolidated financial statement shall contain a footnote to the consolidated tax return of its Affiliateseffect that JV Subsidiary’s assets are owned by JV Subsidiary, and other than with respect to a “disregarded entity” (whose income is reported B) such assets shall be listed on the tax return of its owner), prepare and file JV Subsidiary’s own balance sheet; (ii) maintain its own tax returns books and records and bank accounts separate from those any other Person; (iii) shall not commingle or pool any of its funds and other assets with those of any Person to the extent required by Requirements of LawAffiliate, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, Member or any Affiliate of any Member or any other Person, and it shall hold all of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
its assets in its own name; (viiiiv) not enter into any transaction with any Person owned guarantee, become obligated for, or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would hold itself or its credit out to be responsible for, or available for unaffiliated third partiesto satisfy, and pursuant to written, enforceable agreements;
(ix) not commingle its assets the debts or funds with those obligations of any other Person or control the decisions or actions respecting the daily business or affairs of any other Person (except as provided for in or permitted under the Transaction Documents); (v) not acquire equity interests of any Affiliate or of any Member or any of its Affiliates (other than as required or permitted by this Agreement;
(x) Permitted Assets and except as otherwise provided for in or permitted under this JV Subsidiary LLC Agreement or the other Transaction Documents); (vi) maintain its assets in such a manner that it is not difficult to segregate, identify or ascertain such assets; (vii) shall not issue any other Loan Documents, minority equity interests; (viii) not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent except as otherwise contemplated by the Transaction Documents; and Lenders in connection (ix) maintain arm’s-length relationships with the Loan. Failure each of any Borrower to comply its Affiliates and not enter into business transactions with any of them unless such transactions are on terms and conditions that are not materially more or less favorable to such Affiliate than the foregoing covenants terms and conditions that would be expected to have been obtained, under similar circumstances, from Persons who are not Affiliates; it being understood that the entering into of any Transaction Document and the performance thereof in accordance with its terms satisfies such standard.
b. It has done, or caused to be done, and shall do, all things necessary to observe all Delaware limited liability company formalities and other organizational formalities, and preserve its existence.
c. JV Subsidiary shall not be consensually merged or legally consolidated with any other covenants contained in this Agreement Person (other than certain Affiliates for financial reporting and federal tax purposes).
d. JV Subsidiary shall not affect the status of such Borrower as a separate legal entitypermit or suffer to exist any Liens on its assets other than Permitted Liens.
Appears in 1 contract
Samples: Limited Liability Company Agreement (APT Sunshine State LLC)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and JV Subsidiary covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantsthat:
(a) It shall: (i) maintain books and records prepare separate financial reports and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person Person, and will not have its assets listed on any the financial statement of any other Person; except provided, however, that each Borrower’s its assets may be included in on a consolidated financial statement of its Affiliate;
parent if: (viA) other than with respect such consolidated financial statement shall contain a footnote to the consolidated tax return of its Affiliateseffect that JV Subsidiary’s assets are owned by JV Subsidiary, and other than with respect to a “disregarded entity” (whose income is reported B) such assets shall be listed on the tax return of its owner), prepare and file JV Subsidiary’s own balance sheet; (ii) maintain its own tax returns books and records and bank accounts separate from those of any Person to the extent required by Requirements other Person; (iii) not commingle or pool any of Law, its funds and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared other assets with Affiliates, constituents, or owners, or any guarantors those of any of their respective obligationsAffiliate, any member or any Affiliate of any member or any other Person, and it shall hold all of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
its assets in its own name; (viiiiv) not enter into any transaction with any Person owned guarantee, become obligated for, or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would hold itself or its credit out to be responsible for, or available for unaffiliated third partiesto satisfy, and pursuant to written, enforceable agreements;
(ix) not commingle its assets the debts or funds with those obligations of any other Person or control the decisions or actions respecting the daily business or affairs of any other Person (except as provided for in or permitted under the Transaction Documents); (v) not acquire equity interests of any Affiliate or of any member or any of its Affiliates (other than as required or permitted by this Agreement;
(x) Permitted Assets and except as otherwise provided for in or permitted under this JV Subsidiary LLC Agreement or the other Transaction Documents); (vi) maintain its assets in such a manner that it is not difficult to segregate, identify or ascertain such assets; (vii) not issue any other Loan Documents, minority equity interests; (viii) not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent except as otherwise contemplated by the Transaction Documents; and Lenders in connection (ix) maintain arm’s-length relationships with the Loan. Failure each of any Borrower to comply its Affiliates and not enter into business transactions with any of them unless such transactions are on terms and conditions that are not materially more or less favorable to such Affiliate than the foregoing covenants terms and conditions that would be expected to have been obtained, under similar circumstances, from Persons who are not Affiliates; it being understood that the entering into of any Transaction Document and the performance thereof in accordance with its terms satisfies such standard.
(b) It has done, or caused to be done, and shall do, all things necessary to observe all Delaware limited liability company formalities and other organizational formalities, and preserve its existence.
(c) JV Subsidiary shall not be consensually merged or legally consolidated with any other covenants contained in this Agreement Person (other than certain Affiliates for financial reporting and federal tax purposes).
(d) JV Subsidiary shall not affect the status of such Borrower as a separate legal entitypermit or suffer to exist any Liens on its assets other than Permitted Encumbrances.
Appears in 1 contract
Samples: Limited Liability Company Agreement (APT Sunshine State LLC)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person, except as contemplated by the Loan Documents; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for LOAN AGREEMENT - Page 13 Loan No. 1002863 02941-0345/LEGAL18900961.3 unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and to the extent Borrower uses stationery, invoices or checks, use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixiv) not make loans or advances to any other Person;
; (xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvi) [intentionally omitted]; (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall only apply to the extent that there is positive net cash flow at the Property after the payment of all Permitted Operating Expenses and other property expenses (including costs of Tenant Improvements, Leasing Commissions and capital expenditures), any amounts owing under the Swap Contract, and any debt service on the Loan, and shall not require any equity owner to make additional capital contributions to any Borrower;
; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its the Partnership’s operations since its organization it and so long as any obligation under the Note Documents is outstanding, the Partnership (and the General Partner on behalf of the Partnership) has observed, observed and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrowerthe Partnership’s assets may be included in a consolidated financial statement statements of its AffiliateAffiliates so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Partnership from such Affiliate and to disclose the separate nature of the Partnership’s indebtedness;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) except as permitted by the Note Documents, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for in comparable transactions with unaffiliated third partiesparties (or, if no comparable transactions with unaffiliated third parties would be available, then on terms that are determined by the board of directors of the General Partner to be fair in light of all factors considered by such board of directors to be pertinent to the Partnership), and pursuant to written, enforceable agreements;
(ix) conduct its own business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person (other than with respect to the pledge of its assets to secure the debt of the other BorrowersCrest Obligation);
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than (i) pledges by its Partners of their interests in the co-Borrowers Partnership and the other guarantees and indemnities set forth in the Loan Note Documents and in (ii) with respect to the Environmental Indemnity AgreementCrest Obligation);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xv) maintain a sufficient number of employees or engaged independent contractors in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its the Partnership’s own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner Partner to make additional capital contributions to any Borrower;the Partnership; and
(xvii) cause the managersofficers, officersdirectors, employees, agents and other representatives of each Borrower the General Partner or the Partnership to act at all times with respect to such Borrower the Partnership consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) the Partnership except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in extent required or permitted by the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Note Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower the Partnership, or the General Partner on behalf of the Partnership, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower the Partnership as a separate legal entity.
Appears in 1 contract
Samples: Limited Partnership Agreement (Sabine Pass LNG, L.P.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books amend, modify or otherwise change its charter, bylaws or other organizational documents in any material term or manner, or in a manner which adversely affects the existence of Borrower or any such Subsidiary, as the case may be, as a single purpose entity without the prior written consent of Lender;
(ii) permit any shareholder or other equity holder of Borrower or any such Subsidiary to amend, modify or otherwise change the charter, bylaws or other organizational documents of Borrower or any such Subsidiary, as the case may be, in any material term or manner, or in a manner which adversely affects the existence of Borrower or any such Subsidiary, as the case may be, as a single purpose entity without the prior written consent of Lender;
(iii) to the full extent permitted by law, liquidate or dissolve (or suffer any liquidation or dissolution), or enter into any transaction of merger or consolidation, or acquire by purchase or otherwise all or substantially all the business or assets of, or any stock or other beneficial ownership of, any entity (other than the Permitted Subsidiaries) without the prior written consent of Lender;
(iv) guarantee, pledge its assets for the benefit of, hold its credit as being available to satisfy, or otherwise become liable, on or in connection with, any obligation of any other person (other than as permitted pursuant to Section 5.4(c)(i) or (ii)) without the prior written consent of Lender;
(v) without the prior written consent of Lender, own any asset other than (x) incidental personal property necessary for compliance with the provisions of Section 5.3(o) and records this Section 5.4(n) and bank (y)
(A) for the Borrower, (I) the shares of stock, partnership interests and membership interests in the Permitted Subsidiaries owned directly by Borrower; and (II) incidental personal property necessary for the ownership of the shares of stock, partnership interests and membership interests in such Permitted Subsidiaries; (B) for any Property Owners, the Fee Estate with respect to the Facility set forth opposite such Property Owner's name on Schedule I and other property designated as being owned by such Property Owner pursuant to the Master Lease; (C) for any Property Operators (other than Fort Austin LP), the assets necessary for the business of operating the Facility set forth opposite such Property Operator's name on Schedule I; (D) for any HCPI Lessees, the assets necessary for the business of leasing the property related to, and operation of, the HCPI Leased Facility set forth opposite such HCPI Lessee's name on Schedule 5.4(g)(iv); (E) for any ARC General Partner or ARC Equity Owner, (I) the shares of stock, partnership interests and membership interests in the Permitted Subsidiaries owned directly by such ARC General Partner or ARC Equity Owner, as the case may be; and (II) incidental personal property necessary for the ownership of the shares of stock, partnership interests and membership interests in such Permitted Subsidiaries; (F) for ARC SC Holdings, (I) the membership interests in ARC Santa Catalina; and (II) incidental personal property necessary for the ownership of such membership interests; (G) for ARC Wilora Lake, (I) the Fee Estate set forth opposite ARC Wilora Lake's name on Part of C of Schedule I; and (II) the assets necessary for the business of operating the facility located on such Real Property; (H) for ARC Wilora Assisted Living, the assets necessary for the business of operating the assisted living wing of the facility located on the Fee Estate set forth opposite ARC Wilora Lake's name on Part of C of Schedule I; and (I) for Fort Austin LP, (I) the assets necessary for the business of operating the Facility set forth opposite Fort Austin LP's name on Schedule I; (II) the membership interests in the ARC Fleetwood Entity owned directly by Fort Austin LP; and (III) incidental personal property necessary for the ownership of the membership interests in such Fleetwood Entity;
(vi) engage, either directly or indirectly, in any business other than the business permitted pursuant to Section 5.4(g) for Borrower or such Subsidiary, as the case may be, without the prior written consent of Lender;
(vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation) without the prior written consent of Lender (other than accounts separate from payable incurred in the ordinary course of business and the Indebtedness permitted pursuant to Section 5.4(b));
(viii) make any loans or advances to any other person or entity, including the Permitted Subsidiaries other than loans or advances permitted pursuant to Section 5.4(f);
(ix) commingle the funds and other assets of Borrower or such Subsidiary, as the case may be, with those of the Permitted Subsidiaries, any shareholder or other equity holder, Affiliate or any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(ivx) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying responsible for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person (other than with respect to (x) Borrower's obligations under the pledge HCPI Guaranty and (y) the obligations of any ARC General Partner, in its assets to secure the debt of the other Borrowerscapacity as a general partner);
(xi) correct do any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee act which would make it impossible for Borrower or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or membersSubsidiary, as the case may be, unless to carry on the ordinary business of Borrower or such an obligation is fully subordinated to Subsidiary, as the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligationcase may be; and
(xixxii) except hold title to the assets of Borrower or such Subsidiary, as otherwise provided the case may be, other than in the name of Borrower or such Subsidiary, as the case may be. Notwithstanding anything herein to the contrary in this Agreement or in any other Loan DocumentsSection 5.4(n), (x) the provisions of this Section 5.4(n) shall not pledge its assets for apply to the benefit of any other Person other than to Administrative Agent ARC Fleetwood Entities and Lenders in connection with the Loan. Failure of any (y) Borrower to comply with any of the foregoing covenants or any other covenants contained Subsidiary may, from time to time, (x) make lawful distributions in this Agreement shall not affect accordance with applicable law or loans on an arm's length basis to its Affiliates subject to the status provisions of Section 5.3(o)(viii), or (y) obtain loans on an arm's length basis or lawful capital contributions in accordance with applicable law from its Affiliates to the extent necessary to satisfy its obligations as they become due; provided, however, that all such transactions are accurately reflected in the books and records of Borrower or such Subsidiary, as a separate legal entitythe case may be, and each of its respective applicable Affiliates.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, Borrower and Operating Lessee each Borrower represents, warrants represent and covenants warrant that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
Affiliates so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s, or Operating Lessee’s (vi) as applicable), assets and credit are not available to satisfy the debts and other obligations of such Affiliate (other than with respect to the consolidated tax return of its Affiliates, and Borrower) or any other than with respect to a “disregarded entity” Person; (whose income is reported on the tax return of its owner), vii) prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates; (ix) except for the Operating Lease, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (xi) not commingle its assets or funds with those of any other Person other than as Person, provided, maintenance of the accounts required or permitted by this Agreement;
hereunder shall not be deemed a breach of the foregoing; (xxii) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than in connection with respect to the pledge of its assets to secure the debt of the other Borrowers;
Loan; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers (other than Borrower) to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
, except as expressly permitted in this Agreement; (xivxvi) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
Borrower or Operating Lessee; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower Borrower, or Operating Lessee, as applicable, to act at all times with respect to such Borrower Borrower, or Operating Lessee, consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement , or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the LoanOperating Lessee. Failure of any Borrower or Operating Lessee to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such the Borrower or Operating Lessee as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) : maintain books and records and bank accounts separate from those of any other Person;
(ii) ; maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds assets; existence; comply with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) ; maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Borrower from such Affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person; other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
Law except (viia) taxes that are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves are being maintained or (b) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect; provided, however, so long as Borrower is a disregarded entity for tax purposes, Borrower shall have no obligation to file any tax return in accordance with the prior sentence; allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) ; not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) ; conduct business in its own name, and use separate stationery, invoices and checks; not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
, except that, as an accommodation to each Borrower as part of a centralized cash management system , Administrative Agent has consented to (xi) except the commingling of Rents with monies of other Borrowers (but no other Persons) in a master account in the name of * (the “Master Account”) and (ii) after Rents have been deposited into the Master Account, the transfer of funds in the Master Account (so long as otherwise an Event of Default does not then exists) to an account maintained by Welltower Property Manager to pay certain expenses of Borrowers and other Affiliates of Guarantor; provided however that (a) each Borrower’s funds will be separately accounted for in this Agreement or in the books and records of such account, (b) at all times, each Borrower’s assets and liabilities can be identified from those of any other Loan Documents, Person and (c) such funds shall be used only for proper expenses and costs of managing and operating the Projects; not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) ; correct any known misunderstanding as to its separate identity;
(xii) ; not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) ; not make loans or advances to any other Person;
(xiv) ; pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) ; intend to maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) ; cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, ; not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that if cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, and not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return returns of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except as permitted under Section 7.06 and under the Parent Cash Management System and except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name;
(x) not commingle its assets or funds with those of any other Person Person, other than as (A) permitted or required or permitted by this AgreementAgreement and (B) contemplated by the Parent Cash Management System;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person Person, other than with respect to the pledge of its assets to secure the debt indebtedness of the other Borrowers;Borrowers hereunder and as described in Section 7.02(d).
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers limited guarantees, indemnities and the guarantees and indemnities pledge of assets set forth in the Loan Credit Documents and in the Environmental Hazardous Materials Indemnity Agreement)) and as permitted under Section 7.06;
(xiiixiv) not make loans or advances to any other PersonPerson except as contemplated by the Parent Cash Management System;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow or from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borroweradvances permitted under Section 7.06;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own fundsfunds or from advances permitted under Section 7.06;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;; and
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;; LOAN AGREEMENT – Page 51[Summit Pxxxxxxxxx]
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such Affiliate and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Borrower except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other BorrowersPerson;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers Borrower to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;; LOAN AGREEMENT – Page 52[Summit Pxxxxxxxxx]
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order Covenants with Respect to maintain its status as a separate entity Indebtedness, Operations and to avoid any confusion or potential consolidation with any Affiliate Fundamental Changes of any an Individual BORROWER
17.1 Each Individual Borrower, each Borrower for itself, hereby represents, warrants and covenants covenants, as of the date hereof and until such time as the Note is paid in full, that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantssuch Individual Borrower:
(a) shall not (i) liquidate or dissolve (or suffer any liquidation or dissolution), terminate, or otherwise dispose of, directly, indirectly or by operation of law, all or substantially all of its assets; (ii) reorganize or change its legal structure without Lender's prior written consent, except as otherwise expressly permitted under Article III herein entitled "Prohibition on Transfer"; (iii) change its name, address, or the name under which Individual Borrower conducts its business without promptly notifying Lender; (iv) enter into or consummate any merger, consolidation, sale, transfer, assignment, liquidation, or dissolution involving any or all of the assets of Individual Borrower or any general partner or managing member of Individual Borrower, except as otherwise expressly permitted under Article III herein entitled "Prohibition on Transfer"; or (v) enter into or consummate any transaction or acquisition, merger or consolidation or otherwise acquire by purchase or otherwise all or any portion of the business or assets of, or any stock or other evidence of beneficial ownership of, any person or entity;
(b) as of the date hereof has no secured or unsecured debt except for customary and reasonable short term trade payables or equipment financing obtained and repaid in the ordinary course of such Individual Borrower's business and taxes and assessments not delinquent, and shall not incur any secured or unsecured debt except for customary and reasonable short term trade payables or equipment financing obtained and repaid in the ordinary course of such Individual Borrower's business and taxes and assessments not delinquent;
(c) shall not amend, modify or otherwise change its operating agreement, articles of organization, or other formation agreement or document, as applicable, or governing agreement or document, in any material term or manner, or in a manner which adversely affects such Individual Borrower's existence as a single purpose entity;
(d) shall allocate fairly and reasonably any rent, overhead and expenses for shared office space;
(e) shall maintain correct and complete financial statements, accounts, books and records and bank accounts other entity documents separate from those of any Affiliate (as hereinafter defined in this Article) of same or any other Personperson or entity;
(f) shall observe applicable limited liability company and general partnership formalities regarding the existence of such Individual Borrower;
(g) shall hold title to its assets in its own name and act solely in its own name;
(h) shall make investments in the name of such Individual Borrower directly by such Individual Borrower or on its behalf by brokers engaged and paid by such Individual Borrower or its agents;
(i) except as expressly required by Lender in connection with the Loan secured by the Lien Instruments and in writing, shall not guarantee or otherwise agree to be liable for (whether conditionally or unconditionally), pledge or assume or hold itself out or permit itself to be held out as having guaranteed, pledged or assumed any liabilities or obligations of any partner (whether limited or general), member, shareholder or any Affiliate of such Individual Borrower, as applicable, or any other party, nor shall it make any loan, except as expressly permitted in the Loan Documents;
(j) is, and will use commercially reasonable efforts to remain, solvent;
(k) shall separately identify and maintain its assets. Each Individual Borrower's assets shall at all times be held by or on behalf of such Individual Borrower and if held on behalf of such Individual Borrower by another entity, shall at all times be kept identifiable (in accordance with customary usages) as assets owned by such Individual Borrower. This restriction requires, among other things, that (i) such Individual Borrower's funds shall be deposited or invested in such Individual Borrower’s name, (ii) (ii) such Individual Borrower funds shall not be commingled with the funds of any Affiliate of same or any other person or entity, (iii) such Individual Borrower shall maintain all accounts in its own name and with its own tax identification number, separate from those of any Affiliate of same or any other person or entity, and (iv) such Individual Borrower funds shall be used only for the business of such Individual Borrower;
(l) shall maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify or ascertain such its individual assets and shall not commingle its assets or funds with from those of any Affiliate of same or other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other person or entity;
(vm) maintain separate financial statements, showing its assets and liabilities separate and apart from those of shall not do any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect act which would make it impossible to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported carry on the tax return ordinary business of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any such Individual Borrower;
(xvn) pay shall not invest any of such Individual Borrower's funds in securities issued by, nor shall such Individual Borrower acquire the salaries indebtedness or obligation of, any Affiliate of its own employees, if any, only from its own fundssame;
(xvio) shall maintain adequate capital in light an arm's length relationship with each of its contemplated Affiliates and may enter into contracts or transact business purpose, transactions and liabilities (with its Affiliates only on commercially reasonable terms that are no less favorable to such Individual Borrower than is obtainable in the extent there exists sufficient cash flow market from the applicable Individual Property to do so); provided, however, a person or entity that the foregoing shall is not require any equity owner to make additional capital contributions to any Borroweran Affiliate of same;
(xviip) cause the managers, officers, employees, agents and other representatives of each shall correct any misunderstanding that is known by such Individual Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement regarding its name or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligationseparate identity; and
(xixq) except as otherwise provided in this Agreement shall not, without the prior written vote of one hundred percent (100%) of its members institute proceedings to be adjudicated bankrupt or in insolvent; or consent to the institution of bankruptcy or insolvency proceedings against it; or file a petition seeking, or consent to, reorganization or relief under any applicable federal or state law relating to bankruptcy; or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other Loan Documents, not pledge its assets similar official) of such Individual Borrower or a substantial part of such Individual Borrower's property; or make any assignment for the benefit of creditors; or admit in writing its inability to pay its debts generally as they become due or declare or effectuate a moratorium on payments of its obligation; or take any other Person other than to Administrative Agent and Lenders action in connection with the Loan. Failure furtherance of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entityaction.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will (except as may otherwise be required under this Agreement or the Loan Documents) continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
; (vivii) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viiiix) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (xi) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxii) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
; (xivxvi) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain not make any distributions to its members or partners which would result in Borrower not having adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (Howard Hughes Corp)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any BorrowerAffiliate, each of Operating Lessee and Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (vvi) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each of Borrower’s and Operating Lessee’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect its’ Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the consolidated tax return separateness of its Affiliates, each of Borrower and Operating Lessee from such Affiliate and to indicate that each of Borrower’s and Operating Lessee’s assets and credit are not available to satisfy the debts and other than with respect to a “disregarded entity” obligations of such Affiliate or any other Person; (whose income is reported on the tax return of its owner), vii) prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viiviii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viiiix) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixx) conduct business in its own name and use checks bearing its own name; (xi) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
Person; (xxii) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
Person; (xixiii) correct any known misunderstanding as to its separate identity;
; (xiixiv) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixv) not make loans or advances to any other Person;
; (xivxvi) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
Borrower or Operating Lessee; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each of Borrower and Operating Lessee to act at all times with respect to such Borrower party consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loanparty. Failure of any Borrower or Operating Lessee to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such either of Borrower or Operating Lessee as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (KBS Strategic Opportunity REIT II, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borroweraffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
"Separateness Provisions"): (i) maintain books and records and bank accounts separate from those of any other Person;
person or entity; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person person and not have its assets listed on any financial statement of any other Person; person or entity except that each Borrower’s 's assets may be included in a consolidated financial statement of its Affiliate;
its' affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Borrower from such affiliate and to indicate that Borrower's assets and credit are not available to satisfy the debts and other obligations of such affiliate or any other person or entity; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person person or entity to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
affiliates; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers affiliate, except on an arm’sarm's-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required person or permitted by this Agreement;
entity; (xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
person or entity; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers affiliate to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixiv) not make loans or advances to any other Person;
person or entity; (xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borroweraffiliate, each Borrower represents, warrants and covenants that in the conduct of its each Required SPE’s operations since its organization it has observedhas, and covenants that it will each Required SPE shall continue to observe, the following covenants:covenants (collectively, the “Separateness Provisions”):
(i) i. maintain books and records and bank accounts separate from those of any other Person;
(ii) . maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do . comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) . hold itself out to creditors and the public as a legal entity separate and distinct from any other entityPerson;
(v) v. maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; Person except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliateaffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Borrower from such affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), . prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Applicable Law, and pay any taxes required to be paid by Requirements of Applicable Law;
(vii) . allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliateaffiliates;
(viii) . other than capital contributions and distributions permitted under the terms of its organizational documents, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) . conduct business in its own name;
x. not commingle its assets or funds with those of any other Person other than Person, except as expressly required or permitted by this Agreementthe Loan Documents;
(x) except as otherwise provided in this Agreement or in any other Loan Documents, xi. not assume, guarantee or pay the debts or obligations of any other Person other than with respect except as permitted under and pursuant to the pledge of its assets to secure the debt terms of the other BorrowersLoan Documents;
(xi) xii. correct any known misunderstanding as to its separate identity;
(xii) xiii. not permit any Affiliate of Borrowers affiliate to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
(xiii) xiv. not make loans or advances to any other Person;
(xiv) xv. pay its liabilities and expenses out from its own funds;
xvi. maintain a sufficient number of and to the extent employees in light of its own funds so long as there is available cash flow from the applicable Project contemplated business operation and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;; and
(xvi) xvii. maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loanoperations. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Revolving Loan Agreement (RREEF Property Trust, Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each (a) Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenantsshall:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each the Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to except for the pledge of its assets to secure the debt of the other BorrowersCross Guaranty Obligation;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations except (other than a) the co-Borrowers and Guarantors pursuant to the guarantees and indemnities set forth in Guaranty, or (b) any Manchester SPE pursuant to the Loan Documents and in the Environmental Indemnity Agreement)Cross Guaranty Obligation;
(xiiixiv) not make loans or advances to any other Personperson except pursuant to the Cross Guaranty Obligation;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from except for (a) the applicable Project Guarantors pursuant to the Guaranty, and provided, however, that the foregoing shall not require (b) any owners Manchester SPE pursuant to Section 2.11 of any Borrower to make additional capital contributions to any Borrowerthis Agreement;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrowerliabilities;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not at all times have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligationat least one Independent Manager; and
(xix) except as otherwise provided comply in this Agreement all respects with the assumptions contained in the bankruptcy opinion of Gxxxxxxxx Txxxxxx LLP dated December 28, 2006.
(b) Borrower shall not:
(i) guarantee any obligation of any Person, including any Affiliate or in any other Loan Documents, not pledge its assets become obligated for the benefit debts of any other Person or hold out its credit as being available to pay the obligations of any other Person;
(ii) engage, directly or indirectly, in any business other than as required or permitted to Administrative Agent and Lenders be performed under the Loan Documents;
(iii) incur, create or assume any indebtedness or liabilities other than as expressly permitted under the Loan Documents;
(iv) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person other than as permitted under the Loan Documents;
(v) to the fullest extent permitted by law, engage in connection with the Loan. Failure any dissolution, liquidation, consolidation, merger, sale or other transfer of any Borrower to comply with any of its assets outside the ordinary course of the foregoing covenants Borrower’s business;
(vi) buy or hold evidence of indebtedness issued by any other covenants contained Person (other than cash or investment-grade securities); or
(vii) form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) or own any equity interest in this Agreement shall not affect the status of such Borrower as a separate legal any other entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status At all times as a separate entity long as any obligations ---------------------- evidenced by the Senior Secured Notes remain outstanding and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that are not discharged in the conduct of its operations since its organization it has observed, and covenants that it will continue to observefull, the following covenantsMembers shall manage the business and affairs of the Company so that, except as the Trustee may otherwise agree from time to time in writing, the Company shall not:
(i) maintain books and records and bank accounts separate from those of engage in any business or activity other Personthan as provided in Section 2.5 hereof;
(ii) fail to maintain its assets in such a manner that it is not costly or difficult to segregaterecords, identify or ascertain such assets books of account and shall not commingle its assets or funds with bank accounts separate and apart from those of its Members and any other Personperson or entity;
(iii) do all things reasonably necessary have its assets listed on the financial statements of any other entity (other than to observe organizational formalities necessary to maintain its separate existencethe extent reflected on a consolidated financial statement);
(iv) commingle its assets with the assets of any of its Members or of any other person or entity;
(v) fail either to hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing entity or person or to conduct its assets and liabilities separate and apart from those of any other Person and not have business solely in its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliateown name;
(vi) other than with respect fail to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person returns, to the extent required by Requirements of Law, and pay any taxes such returns are required to be paid by Requirements of Lawfiled;
(vii) allocate fail to pay its debts and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors liabilities only out of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliateits own assets;
(viii) not enter into any transaction with any Person owned fail to preserve its existence as an entity duly organized and validly existing under the laws of the jurisdiction of its formation, or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair otherwise fail to observe all its limited liability company and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreementsother organizational formalities;
(ix) not commingle its assets enter into any contract or funds agreement with any Member or affiliate of the Company of a Member, except upon the terms and conditions that commercially reasonable and substantially similar to those of any other Person other than as required or permitted by this Agreementthat would be available on an arms-length basis with unaffiliated third parties;
(x) except as otherwise provided fail to maintain a sufficient number of employees in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge light of its assets contemplated business operations or fail to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, employees only from its own funds;
(xi) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any debt or obligation of any person, other than the Senior Secured Notes), except in the ordinary course of its business, provided that such debt is not evidenced by a note;
(xii) hold itself out to be responsible for the debts of another person.
(xiii) own any subsidiary or make any investment in, any person or entity, except for its ownership of partnership interests in POA or in Project Orange Funding L.P. and Project Orange Capital Corp., and/or such other entities, the existence of which is necessary or desirable for the purpose of owning, operating, maintaining and /or financing POA, including without limitation in connection with the issuance and servicing of the Senior Secured Notes, or otherwise acquire the obligations or securities of its Members or their Affiliates;
(xiv) make any loans or advances to any Member, Affiliate of the Company or any third party;
(xv) fail to allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including paying for office space and services performed by an employee of an affiliate;
(xvi) maintain adequate capital in light of fail to use separate stationery, invoices and checks bearing its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrowerown name;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person person or entity [other than pursuant to Administrative Agent and Lenders in connection with the Loan. Failure terms of the Financing Documents];
(xviii) fail to correct any known misunderstandings regarding the separate identity of the Company from that of any Borrower to comply with any of the foregoing covenants Member, affiliate thereof or any other covenants contained person;
(xix) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xx) merge into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure; or
(xxi) fail to have a Special Independent Member. As of the date hereof, the Special Independent Member of the Company is Xxxxxx X. X'Xxxxx. Notwithstanding anything to the contrary set forth in the Certificate of Formation or this Agreement, so long as any obligations evidenced by the Senior Secured Notes remain outstanding and are not discharged in full, the prior written consent of all Members, including the Special Independent Member, shall be required for the Company to:
(i) file or consent to a voluntary petition or otherwise initiate proceedings for the Company to be adjudicated bankruptcy or insolvent or seeking an order for relief as a debtor under the Bankruptcy Code or file or consent to the filing of, or cause the filing of, any petition seeking any composition, bankruptcy, reorganization, readjustment, liquidation, dissolution or similar relief for the Company under any applicable state or federal bankruptcy laws or any other present or future applicable federal, state or other statute or law relative to bankruptcy, insolvency or other relief for debtors, or
(ii) seek or consent to the appointment of a trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Company or of all or any substantial part of the properties and assets of the Company; or
(iii) make or consent to any general assignment for the benefit of creditors, or
(iv) admit in writing its inability to pay its debts generally as they become due, or declare or effect a moratorium on its debt, or
(v) sell, give, pledge, encumber, assign, transfer or otherwise dispose of all or any part of the partnership interests in POA or the taking of any other action that would cause the Company to fail to have effective control over POA, or
(vi) amend or modify in any respect the Agreement Concerning Management of Project Orange Associates, L.P. dated December 6, 1999 by and between G.A.S. Orange Associates, L.L.C. and G.A.S. Orange Partners, L.P. Except for the foregoing actions and decisions, and any other actions or decisions for which the affirmative vote of the Special Independent Member is expressly required hereunder, the Special Independent Member shall not be entitled to participate in any actions or decisions of the Members. Whenever in this Agreement the Special Independent Member is required to make an affirmative vote to authorize any action or decision of the Company, the Special Independent Member shall have an affirmative duty to consider the interests of the creditors of the Company (and the interests of the creditors of POA as the case may be) as well as the interest of the other Members of the Company in determining its affirmative vote to authorize any action or decision of the Company, regardless of whether the Company is insolvent at the time of such proposed action or decision. In accordance with Section 18-1101 of the Delaware Act, this provision is intended to modify any duty (including fiduciary duties) that the Special Independent Member may have at law or in equity to the Company or its Members, and the Special Independent Member shall not affect be liable to the status Company or to any Member based on its performance of such Borrower as a separate legal entityits duties in good faith reliance on the foregoing.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Project Orange Capital Corp)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (i) maintain books and records and bank accounts separate from those of any other Person;
person or entity; (ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
assets; (iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; person or entity except that each Borrower’s assets may be included in a consolidated financial statement of its its’ Affiliate so long as such consolidated financial statement indicates the separateness of Borrower from such Affiliate;
; (vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person person or entity to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
; (viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ix) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (x) not commingle its assets or funds with those of any other Person other than as required person or permitted by this Agreement;
entity; (xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
person or entity; (xixii) correct any known misunderstanding as to its separate identity;
; (xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiixiv) not make loans or advances to any other Person;
person or entity; (xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project funds; (xvi) maintain a sufficient number of employees in light of its contemplated business purpose and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
; (xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
; and (xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Article 8 or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;; LOAN AGREEMENT – PAGE 66
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Law, and pay any taxes required to be paid by Requirements of Law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(x) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xi) correct any known misunderstanding as to its separate identity;
(xii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;; LOAN AGREEMENT – PAGE 67
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xvii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will continue to observe, the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrower’s assets may be included in a consolidated financial statement of its AffiliateAffiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of such Borrower from such Affiliate and to indicate that such Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
(ix) conduct business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this Agreement;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in the Loan Documents and in the Environmental Indemnity Agreement);
(xiiixiv) not make loans or advances to any other Person;
(xivxv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xvxvi) maintain a sufficient number of employees in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds;
(xvixvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner to make additional capital contributions to any Borrower;
(xviixviii) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviiixix) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and;
(xixxx) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan; and
(xxi) observe all partnership, corporate or limited liability company formalities, as applicable. Failure of any Borrower to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Loan Agreement (American Realty Capital Healthcare Trust Inc)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borroweraffiliate, each Borrower represents, represents and warrants and covenants that in the conduct of its operations since its organization it has observed, and covenants that it will shall continue to observeobserve the following covenants (collectively, the following covenants:
“Separateness Provisions”): (ia) maintain books and records and bank accounts separate from those of any other Person;
person or entity; (iib) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds assets; (c) comply with those of any other Person;
(iii) do all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
; (ivd) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
; (ve) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; person or entity except that each Borrower’s assets may be included in a consolidated financial statement of its Affiliate;
its’ affiliate; (vif) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person person or entity to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Law;
applicable law; (viig) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
affiliates; (viiih) not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements;
; (ixi) conduct business in its own name, and use checks bearing its own name; (j) not commingle its assets or funds with those of any other Person other than as required person or permitted by this Agreement;
entity; (xk) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person other than with respect to the pledge of its assets to secure the debt of the other Borrowers;
person or entity; (xil) correct any known misunderstanding as to its separate identity;
; (xiim) not permit any Affiliate of Borrowers affiliate to guarantee or pay its obligations (other than the co-Borrowers and the limited guarantees and indemnities set forth in pursuant to the Loan Documents and in the Environmental Indemnity AgreementDocuments);
; (xiiin) not make loans or advances to any other Person;
person or entity; (xivo) pay its liabilities and expenses out of and from its own funds (to the extent of its own funds so long as there is available exists sufficient cash flow from the applicable Project Property to do so); (p) maintain a sufficient number of employees in light of its contemplated business operation and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrower;
(xv) pay the salaries of its own employees, if any, only from its own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities funds (to the extent there exists sufficient cash flow from the applicable Individual Property to do so); provided, however, that (q) maintain adequate capital for the foregoing shall not require any equity owner normal obligations reasonably foreseeable in a business of its size and character in light of its contemplated business operations (to make additional capital contributions the extent there exists sufficient cash flow from the Property to any Borrower;
do so); and (xviir) cause the managers, officers, employees, agents and other representatives of each Borrower to act at all times with respect to such Borrower consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower to comply with any of the foregoing covenants contained in this Section or any other covenants contained in this Agreement shall not affect the status of such Borrower as a separate legal entity.
Appears in 1 contract
Samples: Term Loan Agreement (Invesco Real Estate Income Trust Inc.)
Separateness Covenants. In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate of any Borrower, each Borrower represents, warrants and covenants that in the conduct of its the Partnership’s operations since its organization it and so long as any obligation under the Note Documents is outstanding, the Partnership (and the General Partner on behalf of the Partnership) has observed, observed and covenants that it will continue to observe, observe the following covenants:
(i) maintain books and records and bank accounts separate from those of any other Person;
(ii) maintain its assets in such a manner that it is not costly or difficult to segregate, identify or ascertain such assets and shall not commingle its assets or funds with those of any other Personassets;
(iii) do comply with all things reasonably necessary to observe organizational formalities necessary to maintain its separate existence;
(iv) hold itself out to creditors and the public as a legal entity separate and distinct from any other entity;
(v) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; except that each Borrowerthe Partnership’s assets may be included in a consolidated financial statement statements of its AffiliateAffiliates so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Partnership from such Affiliate and to disclose the separate nature of the Partnership’s indebtedness;
(vi) other than with respect to the consolidated tax return of its Affiliates, and other than with respect to a “disregarded entity” (whose income is reported on the tax return of its owner), prepare and file its own tax returns separate from those of any Person to the extent required by Requirements of Lawapplicable law, and pay any taxes required to be paid by Requirements of Lawapplicable law;
(vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(viii) except as permitted by the Note Documents, not enter into any transaction with any Person owned or controlled by an Affiliate of Borrowers Affiliates except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for in comparable transactions with unaffiliated third partiesparties (or, if no comparable transactions with unaffiliated third parties would be available, then on terms that are determined by the board of managers of the General Partner to be fair in light of all factors considered by such board of managers to be pertinent to the Partnership), and pursuant to written, enforceable agreements;
(ix) conduct its own business in its own name, and use separate stationery, invoices and checks;
(x) not commingle its assets or funds with those of any other Person other than as required or permitted by this AgreementPerson;
(xxi) except as otherwise provided in this Agreement or in any other Loan Documents, not assume, guarantee or pay the debts or obligations of any other Person (other than with respect to the pledge of its assets to secure the debt of the other BorrowersCrest Obligation);
(xixii) correct any known misunderstanding as to its separate identity;
(xiixiii) not permit any Affiliate of Borrowers to guarantee or pay its obligations (other than (i) pledges by its Partners of their interests in the co-Borrowers Partnership and the other guarantees and indemnities set forth in the Loan Note Documents and in (ii) with respect to the Environmental Indemnity AgreementCrest Obligation);
(xiii) not make loans or advances to any other Person;
(xiv) pay its liabilities and expenses out of and to the extent of its own funds so long as there is available cash flow from the applicable Project and provided, however, that the foregoing shall not require any owners of any Borrower to make additional capital contributions to any Borrowerfunds;
(xv) maintain a sufficient number of employees or engaged independent contractors in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its the Partnership’s own funds;
(xvi) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities (to the extent there exists sufficient cash flow from the applicable Individual Property to do so)liabilities; provided, however, that the foregoing shall not require any equity owner Partner to make additional capital contributions to any Borrower;the Partnership; and
(xvii) cause the officers, directors, managers, officers, employees, agents and other representatives of each Borrower the General Partner or the Partnership to act at all times with respect to such Borrower the Partnership consistently and in furtherance of the foregoing and in the best interests of such Borrower;
(xviii) the Partnership except as expressly provided in the Loan Agreement or in the other Loan Documents, not have any obligation to, and will not, indemnify its partners, officers, directors or members, as the case may be, unless such an obligation is fully subordinated to the Indebtedness and will not constitute a claim against it in extent required or permitted by the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation; and
(xix) except as otherwise provided in this Agreement or in any other Loan Note Documents, not pledge its assets for the benefit of any other Person other than to Administrative Agent and Lenders in connection with the Loan. Failure of any Borrower the Partnership, or the General Partner on behalf of the Partnership, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of such Borrower the Partnership as a separate legal entity.
Appears in 1 contract
Samples: Limited Partnership Agreement (Sabine Pass LNG, L.P.)
