Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that: (i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents; (ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents; (iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due; (iv) Seller shall comply with the provisions of its organizational documents in all material respects; (v) Seller shall do all things necessary to observe its limited liability company formalities and to preserve its existence; (vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law); (vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other; (viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller; (ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others; (x) intentionally omitted; (xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person; (xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency; (xiii) Seller shall, at all times, have at least one (1) Independent Manager; (xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing; (xv) Seller shall not enter into any transaction with an Affiliate of Seller except on terms substantially similar to those that would be available with unaffiliated parties in an arm’s length transaction; (xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employees; (xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate; (xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents; (xix) Seller shall not form, acquire or hold any Subsidiary; and (xx) Seller shall not incur or assume any Indebtedness, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 2 contracts
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.), Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement assets and disposition of Purchased Assets in accordance with the applicable provisions of transactions specifically contemplated by the Transaction Documents;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to BorrowersMortgagors) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction DocumentsAffiliates;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become dueassets;
(iv) Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(v) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any returns (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employeesoperations;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsPerson;
(xix) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 2 contracts
Samples: Master Repurchase Agreement (Claros Mortgage Trust, Inc.), Master Repurchase Agreement (Claros Mortgage Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement assets and disposition of Purchased Assets in accordance with the applicable provisions of transactions specifically contemplated by the Transaction DocumentsDocuments (including, without limitation, Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder);
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become dueassets;
(iv) Seller shall comply with the provisions of its organizational documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate (that is not a Seller) or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate (that is not a Seller) or any other Person;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other PersonPerson (that is not a Seller);
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in constituting an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on arm’s length terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations operations, provided that Seller shall not be required to maintain any employees;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documentsanother Seller;
(xix) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony NorthStar Credit Real Estate, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof Closing Date, Restructuring Amendment Date and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, (v) its interests under the Subordinate Loan, and (vvi) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted or contemplated by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) Seller shall comply with the provisions of its organizational documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) sheet and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omitted;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller (other than the Subordinate Loan) except on terms substantially similar to those that would be available with unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employees;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate[Reserved];
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsDocuments or under the Subordinate Loan;
(xix) Seller shall not form, acquire or hold any Subsidiary; and
(xx) Seller shall not incur or assume any IndebtednessIndebtedness (other than in connection with the Subordinate Loan or the Subordinated Facility Documents), other than than
(A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, each Seller covenants that:
(i) such Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organizationassets (including, acquisitionfor the avoidance of doubt, origination, ownership, hedging, administering, financing, servicing, management, enforcement Eligible Assets which such Seller intends to propose as Purchased Assets) and disposition of Purchased Assets in accordance with the applicable provisions of transactions specifically contemplated by the Transaction Documents;
(ii) such Seller shall not make any loans or advances to any Affiliate or third party (other than advances under Eligible Assets or advances under and the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Eligible Assets and Purchased Assets), in each case except as permitted by the Transaction Documents;
(iii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses, it being understood and acknowledged that Sellers and certain of their Affiliates are externally managed organizations managed by Advisor pursuant to the Advisory Agreement) only from its own assets as the same become due and payable provided that the foregoing shall become duenot require any Person to make any capital contribution to any Seller;
(iv) such Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(v) such Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) such Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the otherother (except for business conducted on behalf of the Seller by Advisor pursuant to the Advisory Agreement);
(viii) such Seller shall 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 and shall remain solvent; solvent provided, that the foregoing shall not require any member, partner or shareholder of Seller Person to make any additional capital contributions contribution to any Seller;
(ix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person (other than with the other Seller in accordance with the Transaction Documents) and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of othersothers (except as expressly contemplated by the applicable Servicing Agreement or any other Transaction Document);
(x) intentionally omittedsuch Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person (other than with the other Seller in accordance with the Transaction Documents);
(xi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents);
(xii) such Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in constituting an Act of Insolvency;
(xiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) such Seller’s organizational documents shall provide (i) that Purchaser be given at least two five (25) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that that, to the fullest extent permitted by law, any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) such Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employeesoperations;
(xvii) such Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an AffiliateAffiliate (it being understood that the Sellers and certain of their Affiliates are externally managed organizations managed by a common Affiliate pursuant to the Advisory Agreement);
(xviii) such Seller shall not pledge its assets to secure the obligations of any other Person (other than with the other Seller in accordance with the Transaction Documents) other than to Purchaser pursuant to the Transaction Documents;
(xix) such Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) such Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Eligible Assets and Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 1 contract
Samples: Master Repurchase Agreement (Benefit Street Partners Realty Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(ia) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement assets and disposition of Purchased Assets in accordance with the applicable provisions of transactions specifically contemplated by the Transaction Documents;
(iib) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction DocumentsAffiliates;
(iiic) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become dueassets;
(ivd) Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(ve) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vif) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheetPerson) and file its own tax returns, if any returns (except to the extent consolidation is required or permitted under Requirements of Law);
(viig) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viiih) Seller shall 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 and shall intends to remain solvent; provided, provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contributions contribution to such Seller;
(ixi) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person Person, except as contemplated by this Agreement or any other Transaction Document, and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(xj) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xik) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xiil) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiiim) Seller shall, at all times, have at least one (1) Independent Manager;
(xivn) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders member of the equity interest in Seller and any Affiliates Seller, manager of Seller or any other Person bound by the Seller’s limited liability company agreement except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xvo) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvip) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that operations;
(q) Seller shall not be required engage in, seek or consent to maintain any employeesdissolution, winding up, Division, liquidation, consolidation, merger, asset sale (except as expressly permitted by this Agreement or the other Transaction Documents), transfer of membership interests or the like, or material amendment of its operating agreement (in each case other than as approved by Purchaser);
(xviir) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviiis) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsPerson;
(xixt) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xxu) Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection Account, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety sixty (9060) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 1 contract
Samples: Master Repurchase Agreement (Fortress Credit Realty Income Trust)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement assets and disposition of Purchased Assets in accordance with the applicable provisions of transactions specifically contemplated by the Transaction Documents;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction DocumentsAffiliates;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become dueassets;
(iv) Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(v) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is required or permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any returns (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employeesoperations;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsPerson;
(xix) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety sixty (9060) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 1 contract
Samples: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, (v) its interests under the Subordinate Loan, and (vvi) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted or contemplated by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) Seller shall comply with the provisions of its organizational documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omitted;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take perform any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller (other than the Subordinate Loan) except on terms substantially similar to those that would be available with unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employees;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate[reserved];
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsDocuments or under the Subordinate Loan;
(xix) Seller shall not form, acquire or hold any Subsidiary; and
(xx) Seller shall not incur or assume any IndebtednessIndebtedness (other than in connection with the Subordinate Loan or the Subordinated Facility Documents), other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than with respect to the organizationPurchased Assets, those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), and other assets incidental to the origination, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement financing and disposition of the Purchased Assets in accordance with (including the applicable provisions origination or acquisition of the assets which Seller intends to sell to Purchaser subject to a Transaction Documentshereunder);
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (in each case, other than advances under the Purchased Assets (or assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Borrowers or otherwise in connection with the origination or acquisition of Purchased Assetstherewith), in each case except as permitted by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same become due and payable provided that the foregoing shall become duenot require any Person to make any capital contribution to Seller;
(iv) Seller shall comply with the provisions of its organizational documents Organizational Documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company organizational or corporate formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, provided that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent ManagerShare Trustee holding a Special Voting Share;
(xivxiii) Seller’s organizational documents Seller shall ensure that the Declaration of Trust shall provide (i) that Purchaser be given at least two five (25) Business Days prior notice of the removal and/or replacement of any Independent ManagerShare Trustee, together with the name and contact information of the replacement Independent Manager Share Trustee and evidence of the replacement’s satisfaction of the definition of Independent Manager Share Trustee except in the case of a removal and/or replacement of the Share Trustee by Purchaser in accordance with the Declaration of Trust and (ii) that any Independent Manager the holder of Seller the Special Voting Share shall not have any fiduciary duty to anyone including Seller, the holders of the equity interest in Seller and any Affiliates of Seller except Seller and except, pursuant to the Declaration of Trust, the creditors of Seller under the Transaction Documents and the relevant Charities and Residuary Beneficiaries (as such terms are defined in the Declaration of Trust) with respect to to, among other things, taking of, or otherwise voting on, any Act of Insolvency; provided, Insolvency in accordance with the Declaration of Trust and Seller shall ensure that its Organizational Documents do not conflict with any of the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealingforegoing;
(xvxiv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvixv) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates other Persons and/or their respective employees) in light of contemplated business operations operations, provided that Seller shall not be required to maintain any employees;
(xviixvi) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviiixvii) Seller shall not pledge pledge, charge, mortgage or assign by way of security its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents;
(xixxviii) Seller shall not form, acquire or hold any Subsidiary; andSubsidiary or own any equity interest in any other entity;
(xxxix) Seller shall not incur create, incur, assume or assume permit to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than than
(A) obligations under or otherwise pursuant to the Transaction Documents, ,
(B) obligations under the documents evidencing the Purchased Assets, and and
(C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained); and
(xx) Seller shall (A) be an exempted company incorporated with limited liability under the laws of the Cayman Islands, and (B) not, without the prior unanimous written consent of its Share Trustee, take any steps that would result in any Act of Insolvency.
Appears in 1 contract
Samples: Master Repurchase Agreement (TPG RE Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than with respect to the organizationPurchased Assets (including Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder), those Purchased Assets which have been repurchased from Purchaser by Seller (provided that such Purchased Assets are transferred promptly to an entity other than Seller after such repurchase), and other assets incidental to the origination, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement financing and disposition of the Purchased Assets in accordance with the applicable provisions of the Transaction DocumentsAssets;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (in each case, other than advances under the Purchased Assets (or Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder) to Mortgagors or Mezzanine Borrowers or otherwise in connection with the origination or acquisition of Purchased Assetstherewith), in each case except as permitted by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) Seller shall comply with the provisions of its organizational documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law, such as in the case of a disregarded entity);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omittedIntentionally Omitted;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations operations, provided that Seller shall not be required to maintain any employees;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents;
(xix) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) Seller shall not incur create, incur, assume or assume permit to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets or the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Samples: Master Repurchase Agreement (Colony Credit Real Estate, Inc.)
Single Purpose Entity Covenants. On and Each Seller hereby covenants with Purchaser, that as of the date hereof and at all times while this Agreement or for so long as any of the Transaction hereunder is Documents shall remain in effect, Seller covenants that:
(ia) such Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assetsassets, and shall not engage in any business, other than the organizationassets and transactions specifically contemplated by this Agreement and any other Transaction Document and other assets incidental to the origination, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement financing and disposition of the Purchased Assets in accordance with the applicable provisions of the Transaction Documents;Assets.
(iib) such Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction DocumentsAffiliates;
(iiic) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become dueassets;
(ivd) such Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(ve) such Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vif) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Seller from such Affiliate and to indicate that such Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns, if any returns (except to the extent consolidation is required or permitted under Requirements of Law), or if such Seller is a disregarded entity for federal income tax purposes, Seller’s income may be included in the federal income tax return of its regarded owner to the extent required or permitted by the applicable Requirements of Law;
(viig) such Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viiih) such Seller shall 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 and shall remain solvent; provided, provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contributions contribution to such Seller;;
(ixi) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others, in each case except in accordance with this Agreement;
(xj) intentionally omittedsuch Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xik) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xiil) such Seller shall not, without the prior unanimous written consent of all of its Independent ManagerMembers, take any action that will result in an Act of Insolvency;
(xiiim) such Seller shall, at all times, have at least one (1) Independent ManagerMember;
(xivn) such Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent ManagerMember, together with the name and contact information of the replacement Independent Manager Member and evidence of the replacement’s satisfaction of the definition of Independent Manager Member and (ii) that any Independent Manager Member of such Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in such Seller and any Affiliates of such Seller except such Seller and the creditors of such Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xvo) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvip) such Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employeesoperations;
(xviiq) such Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviiir) such Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsPurchaser;
(xixs) such Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xxt) such Seller shall not incur create, incur, assume or assume suffer to exist any Indebtedness, Lien, encumbrance or security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (Ai) obligations under the Transaction Documents, (Bii) obligations under the documents evidencing the Purchased Assets, and (Ciii) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 500,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by such Seller shall be paid within ninety sixty (9060) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 1 contract
Samples: Master Repurchase Agreement (Starwood Property Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall own no assets other than (i) Purchased Assets, (ii) its interest under the Transaction Documents, (iii) cash and cash equivalents, (iv) Eligible Assets for which Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(ii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(iii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) Seller shall comply with the provisions of its organizational documents in all material respects;
(v) Seller shall do all things necessary to observe its limited liability company formalities and to preserve its existence;
(vi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) sheet and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of Seller to make any additional capital contributions to Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omitted;
(xi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(xiii) Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) Seller shall not enter into any transaction with an Affiliate of Seller except on terms substantially similar to those that would be available with unaffiliated parties in an arm’s length transaction;
(xvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employees;
(xvii) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents;
(xix) Seller shall not form, acquire or hold any Subsidiary; and
(xx) Seller shall not incur or assume any Indebtedness, other than than
(A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course; provided that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Samples: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, each Seller covenants that:
(i) such Seller shall own no assets assets, and shall not engage in any business, other than (i) Purchased Assets, (ii) its interest under the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, (iii) cash and cash equivalentswithout limitation, (iv) Eligible Assets for which such Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents);
(ii) such Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(iii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) such Seller shall comply with the provisions of its organizational documents in all material respects;
(v) such Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Seller from such Affiliate and to indicate that such Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) such Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) such Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of such Seller to make any additional capital contributions to such Seller;
(ix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omitted[reserved];
(xi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) such Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in constituting an Act of Insolvency;
(xiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) such Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of such Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in such Seller and any Affiliates of such Seller except such Seller and the creditors of such Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) such Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations operations, provided that such Seller shall not be required to maintain any employees;
(xvii) such Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) such Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction Documents;
(xix) such Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) such Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by such Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintainedmaintained (it being understood that the amount of any trade debt denominated in an Applicable Currency other than U.S. Dollars shall be calculated under this clause (xx) based on the then-current equivalent of such amount based on the Spot Rate with respect to such Applicable Currency as of the date of determination).
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants that:
(i) Seller shall has not owned and will not own no any property or any other assets other than (i) Purchased Assets, (ii) its interest under cash, the Transaction Documents, (iii) cash the Cash Management Account and cash equivalentsincidental personal property sufficient for the acquisition and servicing of such assets, (iv) Eligible provided that the foregoing shall not prohibit Seller from owning prospective Purchased Assets for which a period of up to 60 days before such Assets become Purchased Assets or former Purchased Assets for a period of up to 60 days following the repurchase thereof;
(ii) Seller has delivered to Purchaser written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, not engaged and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall will not engage in any business, business other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement financing and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction DocumentsDocuments and entering into servicing agreements;
(iiiii) Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to BorrowersMortgagors) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction DocumentsAffiliates;
(iiiiv) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as assets, provided that the same foregoing shall become duenot require any Person to make any capital contribution to Seller;
(ivv) Seller shall comply with the provisions of its organizational documents in all material respectsdocuments;
(vvi) Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vivii) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Seller from such Affiliate and to indicate that Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns, if any returns (except to the extent consolidation is required or permitted under Requirements of Law);
(viiviii) Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viiiix) Seller shall 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 and shall remain solvent; provided, provided that the foregoing shall not require any member, partner or shareholder of Seller Person to make any additional capital contributions contribution to Seller;
(ixx) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(xxi) intentionally omittedSeller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(xixii) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xiixiii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result engage in an Act of Insolvency;
(xiiixiv) Seller shall, at all times, have at least one (1) Independent Manager;
(xivxv) Seller’s organizational documents shall provide (i) that Purchaser be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in Seller and any Affiliates of Seller except Seller and the creditors of Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;
(xvxvi) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvixvii) Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations provided that Seller shall not be required to maintain any employeesoperations;
(xviixviii) to the extent that Seller at any time uses stationery, invoices or checks (it being understood and agreed that Seller is an externally managed organization), Seller shall use separate stationary, invoices and checks the same bearing its own name, and shall allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviiixix) Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser pursuant to the Transaction DocumentsPerson;
(xixxx) Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xxxxi) Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by Seller shall be paid within ninety sixty (9060) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained)incurred.
Appears in 1 contract
Samples: Master Repurchase Agreement (Realty Finance Trust, Inc.)
Single Purpose Entity Covenants. On and as of the date hereof and at all times while this Agreement or any Transaction hereunder is in effect, each Seller covenants that:
(i) such Seller shall own no assets assets, and shall not engage in any business, other than (i) Purchased Assets, (ii) its interest under the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, (iii) cash and cash equivalentswithout limitation, (iv) Eligible Assets for which such Seller has delivered to Purchaser Purchasers, Repurchase Agent and Realisation Agent written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement, and (v) all other assets incidental to the organization, acquisition, origination, ownership, financing, hedging, administration, servicing, management, enforcement and disposition of the Purchased Assets, and shall not engage in any business, other than the organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents);
(ii) such Seller shall not make any loans or advances to any Affiliate or third party (other than Eligible Assets or advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(iii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets as the same shall become due;
(iv) such Seller shall comply with the provisions of its organizational documents in all material respects;
(v) such Seller shall do all things necessary to observe its limited liability company organizational formalities and to preserve its existence;
(vi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except (A) any lock-box or other collection account maintained by Servicer on behalf of Seller for the collection of Income with respect to the Purchased Assets from the related Borrowers, and (B) that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law); provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Seller from such Affiliate and to indicate that such Seller’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(vii) such Seller shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any Known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, and shall not identify itself or any of its Affiliates as a division of the other;
(viii) such Seller shall 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 and shall remain solvent; provided, that the foregoing shall not require any member, partner or shareholder of such Seller to make any additional capital contributions to such Seller;
(ix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of others;
(x) intentionally omitted[Reserved];
(xi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(xii) such Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in constituting an Act of Insolvency;
(xiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(xiv) such Seller’s organizational documents shall provide (i) that Purchaser Realisation Agent be given at least two (2) Business Days prior notice of the removal and/or replacement of any Independent Manager, together with the name and contact information of the replacement Independent Manager and evidence of the replacement’s satisfaction of the definition of Independent Manager and (ii) that any Independent Manager of such Seller shall not have any fiduciary duty to anyone including the holders of the equity interest in such Seller and any Affiliates of such Seller except such Seller and the creditors of such Seller with respect to taking of, or otherwise voting on, any Act of Insolvency; provided, that the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing;; 76
(xv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms substantially similar to those that would be available with to unaffiliated parties in an arm’s length transaction;
(xvi) such Seller shall maintain a sufficient number of employees (or obtain services to be performed by its Affiliates and/or their respective employees) in light of contemplated business operations operations, provided that such Seller shall not be required to maintain any employees;
(xvii) such Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee of an Affiliate;
(xviii) such Seller shall not pledge its assets to secure the obligations of any other Person other than to Purchaser Purchasers pursuant to the Transaction Documents;
(xix) such Seller shall not form, acquire or hold any SubsidiarySubsidiary or own any equity interest in any other entity; and
(xx) such Seller shall not incur create, incur, assume or assume suffer to exist any IndebtednessIndebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, and (C) liabilities, contingent or otherwise, which are incurred in the ordinary course of organizing, acquiring, originating, owning, hedging, administering, financing, servicing, managing, enforcing and disposing of the Purchased Assets; (including, without limitation, unsecured trade payables payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary coursecourse of acquiring, owning, financing and disposing of the Purchased Assets; provided provided, however, that (A) for unsecured trade payables that constitute legal and transaction related fees in connection with the negotiation and entry into the Transaction Documents, no any such value limit shall apply, and (B) any and all unsecured trade payables incurred by such Seller shall be paid within ninety (90) days of the date incurred unless the same are being contested in good faith and adequate reserves in respect of which are maintainedmaintained (it being understood that the amount of any trade debt denominated in an Applicable Currency other than U.S. Dollars shall be calculated under this clause (xx) based on the then-current equivalent of such amount based on the Spot Rate with respect to such Applicable Currency as of the date of determination). The parties hereto acknowledge and agree that the Existing Agreements and the transactions thereunder shall not be deemed to result in a breach of the covenants contained in this Article 13 by any Seller and the entry by any applicable Seller into this Agreement and the other Transaction Documents shall not be deemed to result in a breach thereby of any of the special purpose entity covenants set forth in the Existing Agreements.
Appears in 1 contract
Samples: Master Repurchase Agreement (Blackstone Mortgage Trust, Inc.)
