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: (a) Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction Documents; (b) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates; (c) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (d) Seller shall comply with the provisions of its organizational documents; (e) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence; (f) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that appropriate notation shall be made on such 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 file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law); (g) 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; (h) 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 intends to remain solvent; provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution to such Seller; (i) Seller shall not commingle its funds or other assets with those of any Affiliate or any other 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; (j) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person; (k) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person; (l) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency; (m) Seller shall, at all times, have at least one (1) Independent Manager; (n) 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 the member of 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; (o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; (p) Seller shall maintain a sufficient number of employees in light of contemplated business operations; (q) Seller shall not engage in, seek or consent to any dissolution, 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); (r) 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; (s) Seller shall not pledge its assets to secure the obligations of any other Person; (t) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and (u) Seller shall not create, incur, assume or suffer to exist any Indebtedness 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Fortress Credit Realty Income Trust), 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to BorrowersMortgagors) and shall not acquire obligations or securities of its Affiliates;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other Person;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurred.
Appears in 2 contracts
Sources: 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:
(ai) Seller shall own no assetsassets 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 assets organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and transactions specifically contemplated by disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational limited liability company formalities and to preserve its existence;
(fvi) 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Personintentionally omitted;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) 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 to with unaffiliated parties in an arm’s length transaction;
(pxvi) 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 operationsoperations provided that Seller shall not be required to maintain any employees;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entitySubsidiary; and
(uxx) Seller shall not create, incur, incur or assume or suffer to exist any Indebtedness 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 acquiredIndebtedness, 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 course of acquiringcourse; 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, owningno such value limit shall apply, financing and disposing of the Purchased Assets; provided, however, that (B) any such and all unsecured trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 2 contracts
Sources: 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required or permitted under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other Person;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 2 contracts
Sources: Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.), Master Repurchase Agreement (FS Credit Real Estate Income Trust, Inc.)
SINGLE PURPOSE ENTITY COVENANTS. On Borrower hereby represents, warrants and covenants that without Lender’s prior written consent, which may be withheld in Lender’s sole discretion, and except as of the date hereof otherwise expressly permitted hereunder, Borrower has not, will not and at all times while this Agreement or any Transaction hereunder is in effect, Seller covenants thatshall not:
(a) Seller shall own no assets, and shall not engage in any business, business or activity other than the assets ownership, management, construction and transactions specifically contemplated by operation of the Transaction DocumentsProject;
(b) Seller acquire or own any material assets other than the Project, and such incidental personal property as may be necessary for the operation of the Project;
(c) merge into or consolidate with any Person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change in its legal structure or acquire by purchase or otherwise all or substantially all the business or assets of, or stock or other evidence of beneficial ownership of, any Person, without in each case the prior written consent of Lender, which consent may be withheld or delayed in Lender’s sole and absolute discretion;
(d) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the State of Delaware or without the prior written consent of Lender amend, modify, terminate or fail to comply with the provisions of Borrower’s formation documents, as same may be further amended or supplemented, if such amendment, modification, termination or failure to comply would adversely affect the ability of Borrower to perform its obligations under the applicable Loan Documents or jeopardize Borrower’s existence as a single purpose entity;
(e) own any subsidiary or make any investment in, any Person without the consent of Lender;
(f) commingle its assets with the assets of any of its Affiliates, or of any other Person;
(g) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than other indebtedness expressly permitted under this Agreement, provided that any such debt is paid before such payments are past due;
(h) become insolvent and fail to pay its debts, liabilities and obligations of any kind, including all administrative expenses, from its own separate assets as the same shall not become due;
(i) fail to maintain its records, books or accounts and bank accounts separate and apart from those of any Affiliate of Borrower, any Affiliate of a partner of Borrower and any other Person or entity;
(j) enter into any contract or agreement with any of its Affiliates except on terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than an Affiliate or as provided in this Agreement;
(k) seek the dissolution or winding up in whole, or in part, of Borrower;
(l) maintain its assets in such manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any partner, member, constituent, principal or Affiliate of Borrower, or any member, general partner, principal or Affiliate thereof, or any other person;
(m) hold itself out to be responsible for the debts of another Person except as specifically permitted in this Agreement;
(n) make any loans or advances to any third party, including any partner, member, constituent, principal or Affiliate of Borrower or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations any member, general partner, principal or securities of its AffiliatesAffiliate thereof;
(co) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;
(d) Seller shall comply with the provisions of its organizational documents;
(e) Seller shall do all things necessary fail to observe its organizational formalities and to preserve its existence;
(f) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that appropriate notation shall be made on such 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 file its own tax returns (except to the extent consolidation returns; provided, however, that Borrower may file a consolidated tax return with any of its Affiliates, but only because such consolidated tax return is required by applicable Laws, and provided such consolidated tax return includes footnotes identifying the separate assets or permitted under Requirements liabilities of Law)Borrower and/or its Affiliates, as applicable;
(gp) Seller shall be, and at all times shall fail either to hold itself out to the public as, as a legal entity separate and distinct from any other entity Person or to conduct its business solely in its own name in order not (A) to mislead others as to the identity with which such other party is transacting business, or (B) to suggest that it is responsible for the debts of any third party (including any Affiliate)partner, shall correct any known misunderstanding regarding its status as a separate entityprincipal, shall conduct business in its own namemember of Affiliate or Borrower, and shall not identify itself or any of its Affiliates partner, principal, member or Affiliate thereof) except as a division of the otherspecifically permitted in this Agreement;
(hq) Seller shall fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations and intends to remain solvent; provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution to such Selleroperations;
(ir) Seller shall not commingle its funds file or other assets with those consent to the filing of any Affiliate petition, either voluntary or involuntary, to take advantage of any other Personapplicable insolvency, except as contemplated by this Agreement bankruptcy, liquidation or any other Transaction Documentreorganization statute, 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 make an assignment for the benefit of otherscreditors;
(js) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(k) Seller shall not hold itself out fail to be responsible for the debts or obligations of any other Person;
(l) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Manager;
(n) 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 the member of 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;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) Seller shall maintain a reasonably sufficient number of employees in light of its contemplated business operations if any employees are required for the contemplated business operations;
(qt) Seller shall not engage in, seek or consent fail to any dissolution, 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);
(r) Seller shall use separate stationary, invoices and checks bearing its own name, and allocate fairly and reasonably any overhead expenses that are shared with any of their respective partners, members, principals or Affiliates of Borrower, any guarantor or indemnitor, or any partner, member, principal or Affiliate thereof, including paying for shared office space and for services performed by an any employee of an Affiliateany of their respective partners, of any members, principals or Affiliates, any guarantor or indemnitor, or any partner, member, principal or Affiliate of any thereof;
(su) Seller shall not pledge except to the extent required by generally accepted accounting principles or applicable law, fail to maintain separate financial statements, which shows its assets to secure the obligations and liabilities, separate and apart from those of any other Person;
(t) Seller shall Person or entity and not form, acquire or hold any Subsidiary or own any equity interest have its assets listed in the financial statement of any other entity; andor
(uv) Seller shall not create, incur, assume or suffer fail to exist correct any Indebtedness or Lien in or on any of known misunderstanding regarding 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurredseparate identity.
Appears in 1 contract
Sources: Construction Loan Agreement (Stratus Properties 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than with respect to the Purchased 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, ownership, financing and transactions specifically contemplated by disposition of the Purchased Assets (including the origination or acquisition of assets which Seller intends to sell to Purchaser subject to a Transaction Documentshereunder);
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its AffiliatesAffiliates (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 therewith);
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same become due and payable provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(div) Seller shall comply with the provisions of its organizational documentsOrganizational Documents in all material respects;
(ev) Seller shall do all things necessary to observe its organizational or corporate formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns 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);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; , provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(l) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxii) Seller shall, at all times, have at least one (1) Independent ManagerShare Trustee holding a Special Voting Share;
(nxiii) 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 the member of anyone including Seller, manager the holders of the equity interest in Seller and any Affiliates of Seller or any other Person bound by except, pursuant to the Seller’s limited liability company agreement except Seller and 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;
(oxiv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those that would be available to unaffiliated parties in an arm’s length transaction;
(pxv) Seller shall maintain a sufficient number of employees (or obtain services to be performed by other Persons and/or their respective employees) in light of contemplated business operations, provided that Seller shall not be required to maintain any employees;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvi) 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;
(sxvii) Seller shall not pledge pledge, charge, mortgage or assign by way of security its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txviii) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and;
(uxix) Seller shall not create, incur, assume or suffer permit to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred 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
Sources: 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, each Seller covenants that:
(ai) such Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, without limitation, 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);
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) such Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) such Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any such Seller to make any additional capital contribution contributions to such Seller;
(iix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person[reserved];
(kxi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) 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;
(mxiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in such Seller and any Affiliates of such Seller or any other Person bound by the Seller’s limited liability company agreement 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;
(oxv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) 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 such Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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);
(r) 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;
(sxviii) such Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txix) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) such Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by such Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained (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
Sources: 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets (including, for the avoidance of doubt, Eligible Assets which Seller intends to propose as Purchased Assets) and transactions specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under Eligible Assets and the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its AffiliatesAffiliates (other than in connection with the origination or acquisition of Eligible Assets and Purchased Assets);
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses, it being understood and acknowledged that Seller and certain of their Affiliates are externally managed organizations managed by Advisor pursuant to the Advisory Agreement) only from its own assetsassets as the same become due and payable provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 124 BUSINESS.31481134.9 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 otherother 125 BUSINESS.31481134.9 (except for business conducted on behalf of Seller by Advisor pursuant to the Advisory Agreement);
(hviii) 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 intends to shall remain solvent; provided solvent provided, that the foregoing shall not require any member, partner or shareholder of any Seller Person to make any additional capital contribution to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any Person (other than with the other Seller in accordance with the Transaction Document, 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);
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents);
(kxi) 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);
(lxii) 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;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations;; 126 BUSINESS.31481134.9
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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 127 BUSINESS.31481134.9 services performed by an employee of an AffiliateAffiliate (it being understood that Seller and certain of their Affiliates are externally managed organizations managed by a common Affiliate pursuant to the Advisory Agreement);
(sxviii) Seller shall not pledge its assets to secure the obligations of any other Person;
(txix) Seller shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, division, consolidation, merger, sale or transfer of all or substantially all of its assets;
(xx) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxxi) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral Collateral, the Collection Account or the Collection Servicer 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Eligible Assets and Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurred.
Appears in 1 contract
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt BDC)
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:
(ai) Seller shall own no assetsassets 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 (vi) 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 assets organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and transactions specifically contemplated by disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted or contemplated by the Transaction Documents;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational limited liability company formalities and to preserve its existence;
(fvi) 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Personintentionally omitted;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller (other than the Subordinate Loan) except on commercially reasonable terms substantially similar to those that would be available to with unaffiliated parties in an arm’s length transaction;
(pxvi) 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 operationsoperations provided that Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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)[Reserved];
(r) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents or under the Subordinate Loan;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entitySubsidiary; and
(uxx) Seller shall not create, incur, incur or assume or suffer to exist any Indebtedness or Lien (other than in or on any of its property, assets, revenue, connection with the Purchased Assets, the other Collateral Subordinate Loan or the Collection Account, whether now owned or hereafter acquiredSubordinated 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, payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiringcourse; 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, owningno such value limit shall apply, financing and disposing of the Purchased Assets; provided, however, that (B) any such and all unsecured trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Sources: 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:
(ai) such Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, without limitation, Eligible Assets for which such Seller has delivered to Purchasers, Repurchase Agent and Realisation Agent written notice of its intent to sell such Eligible Asset as a Purchased Asset pursuant to this Agreement);
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) such Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) such Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any such Seller to make any additional capital contribution contributions to such Seller;
(iix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person[Reserved];
(kxi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) 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;
(mxiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in such Seller and any Affiliates of such Seller or any other Person bound by the Seller’s limited liability company agreement 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
(oxv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) 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 such Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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);
(r) 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;
(sxviii) such Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchasers pursuant to the Transaction Documents;
(txix) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) such Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by such Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained (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
Sources: 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:
(ai) Seller shall own no assetsassets 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 assets organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and transactions specifically contemplated by disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational limited liability company formalities and to preserve its existence;
(fvi) 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Personintentionally omitted;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) 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 to with unaffiliated parties in an arm’s length transaction;
(pxvi) 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 operationsoperations provided that Seller shall not be required to maintain any employees;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entitySubsidiary; and
(uxx) Seller shall not create, incur, incur or assume or suffer to exist any Indebtedness 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 acquiredIndebtedness, 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, payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiringcourse; 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, owningno such value limit shall apply, financing and disposing of the Purchased Assets; provided, however, that (B) any such and all unsecured trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
SINGLE PURPOSE ENTITY COVENANTS. On Mortgagor covenants and agrees that, as of the date hereof and at all times while this Agreement or so long as any Transaction hereunder is of the Loan Documents shall remain in effect, Seller covenants that:
(a) Seller shall own no assets, It is and shall not engage in any business, other than the assets intends to remain solvent and transactions specifically contemplated by the Transaction Documents;
(b) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) it has paid and shall not acquire obligations or securities of its Affiliates;
(c) Seller shall will pay its debts and liabilities (including, as applicable, shared personnel including employment and overhead expenses) only from its own assets;assets as the same shall become due.
(db) Seller shall It has complied and will comply with the provisions of its organizational documents;certificate of formation.
(ec) Seller shall It has done or caused to be done and will, to the extent under its control, do all things necessary to observe its organizational corporate formalities and to preserve its existence;.
(fd) Seller shall It has maintained and will maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; providedAffiliates, that appropriate notation shall be made on such financial statements to indicate the separateness of Seller from such Affiliate its members 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 it will file its own tax returns returns, if any, which are required by law (except to the extent consolidation is required under income tax basis accounting or permitted under Requirements as a matter of Lawlaw);.
(ge) Seller shall It has been, is and will be, and at all times shall will 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 or part of the other;, and shall pay to any Affiliate that incurs costs for office space and administrative services that it uses, the amount of such costs allocable to its use of such office space and administrative services.
(f) It has not owned and will not own any property or any other assets other than the Collateral and cash or other assets in connection therewith.
(g) It has not engaged and will not engage in any business other than the acquisition, ownership, financing and disposition of the Collateral in accordance with the applicable provisions of the Loan Documents.
(h) Seller It has not entered into, and will not enter into, any contract or agreement with any of its Affiliates, except upon terms and conditions that are substantially similar to those that would be available on an arm’s-length basis with Persons other than such Affiliate.
(i) It has not incurred and will not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) obligations under the Loan Documents and (B) unsecured trade payables, in an aggregate amount not to exceed $100,000.00 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Collateral; provided, however, that any such trade payables incurred by Mortgagor shall be paid within 60 days of the date incurred.
(j) It has not made and will not make any loans or advances to any other Person, and shall not acquire obligations or securities of any member or any Affiliate of any member or any other Person.
(k) It will 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 intends to remain solvent; provided that the foregoing operations.
(l) It shall not require seek its dissolution, liquidation or winding up, in whole or in part, or suffer any memberChange of Control, partner or shareholder of any Seller consolidation or merger with respect to make any additional capital contribution to such Seller;Mortgagor.
(im) Seller shall It will not commingle its funds or and other assets with those of any Affiliate of its Affiliates or any other Person, except as contemplated by this Agreement or any other Transaction Document, .
(n) It has maintained and shall will maintain its properties and assets in such a manner that it would will not be costly or difficult to identifysegregate, segregate ascertain or ascertain identify its properties and individual assets from those of others;
(j) Seller shall maintain any of its properties, assets and accounts separate from those of any Affiliate Affiliates or any other Person;.
(ko) Seller shall It has not held and will not hold itself out to be responsible for the debts or obligations of any other Person;
(l) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(m) Seller shall, at all times, have at least one (1) Independent Manager;
(n) 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 the member of 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;
(o) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;.
(p) Seller It shall maintain not take any of the following actions: (i) permit its members to dissolve or liquidate Mortgagor, in whole or in part; (ii) consolidate or merge with or into any other entity or convey or transfer all or substantially all of its properties and assets to any entity; or (iii) institute any proceeding to be adjudicated as bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a sufficient number petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or effect any similar procedure under any similar law, or consent to the filing of employees any such petition or to the appointment of a receiver, rehabilitator, conservator, liquidator, assignee, trustee or sequestrator (or other similar official) of Mortgagor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, or make an assignment for the benefit of creditors, or admit in light writing its inability to pay its debts generally as they become due, or take any action in furtherance of contemplated business operations;any of the foregoing.
(q) Seller shall not engage inIt has no liabilities, seek contingent or consent to any dissolutionotherwise, 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);those normal and incidental to the acquisition, ownership, financing and disposition of the Mortgage Loan.
(r) Seller It has conducted and shall use separate stationary, invoices and checks bearing conduct its own name, and allocate fairly and reasonably any overhead for shared office space and for services performed by an employee business consistent with the requirements of an Affiliate;being a Single-Purpose Entity.
(s) Seller It shall not pledge its assets to secure the obligations of hire or engage any other Person;
(t) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(u) Seller shall not create, incur, assume or suffer to exist any Indebtedness 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurredemployees.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Assignment of Leases and Rents (TNP Strategic Retail 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets origination, acquisition, ownership, financing and transactions disposition of the Purchased Assets specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;; 4895-1210-4939v.10
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that appropriate notation shall be made on such 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 file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law, or if Seller is treated as disregarded from its owner for U.S. federal income or other applicable tax purposes);
(gvii) 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) (except to the extent Seller is treated as disregarded from its owner for U.S. federal income or other applicable tax purposes), 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;
(hviii) 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 intends to remain solvent; , provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 4895-1210-4939v.10 any Independent Manager of Seller shall not have any fiduciary duty to the member of 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees (or obtain services to be performed by other Persons and/or their respective employees) in light of contemplated business operations, provided that Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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 likeinterests, or material amendment of its operating agreement (in each case other than as approved by Purchaser);
(rxviii) 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;
(sxix) Seller shall not pledge its assets to secure the obligations of any other Person;
(txx) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxxi) Seller shall not create, incur, assume or suffer to exist any Indebtedness 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: Master Repurchase Agreement (Principal Credit Real Estate 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than with respect to the Purchased 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, ownership, financing and transactions specifically contemplated by disposition of the Transaction DocumentsPurchased Assets;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its AffiliatesAffiliates (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 therewith);
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns 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);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other PersonIntentionally Omitted;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) Seller shall not, without the prior unanimous written consent of its Independent Manager, take any action that will result in an Act of Insolvency;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) 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 to unaffiliated parties in an arm’s length transaction;
(pxvi) 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;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) Seller shall not create, incur, assume or suffer permit to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, Assets or the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained.
Appears in 1 contract
Sources: Master Repurchase Agreement (Colony Credit Real Estate, 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, without limitation, Eligible Assets which Seller intends to sell to Purchaser subject to a Transaction hereunder);
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate (that is not a Seller) or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate (that is not a Seller) or any other Person;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other PersonPerson (that is not a Seller);
(lxii) 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;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable arm’s length terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations, provided that Seller shall not be required to maintain any employees;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than another Seller;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Sources: Master Repurchase Agreement (Colony NorthStar 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:
(a) such Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by this Agreement and any other Transaction Document and other assets incidental to the Transaction Documents;origination, acquisition, ownership, financing and disposition of the Purchased Assets.
(b) such Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates;
(c) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets;
(d) such Seller shall comply with the provisions of its organizational documents;
(e) such Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(f) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax 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;
(g) 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 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;
(h) 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 intends to shall remain solvent; , provided that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution to such Seller;;
(i) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(j) such Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(k) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(l) 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;
(m) such Seller shall, at all times, have at least one (1) Independent ManagerMember;
(n) 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 member holders of Seller, manager the equity interest in such Seller and any Affiliates of such Seller or any other Person bound by the Seller’s limited liability company agreement 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;
(o) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(p) such Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(r) 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;
(sr) such Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than Purchaser;
(ts) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(ut) such Seller shall not create, incur, assume or suffer to exist any Indebtedness Indebtedness, Lien, encumbrance or Lien security interest in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 500,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by such Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: 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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets (including, for the avoidance of doubt, Eligible Assets which Seller intends to propose as Purchased Assets) and transactions specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under Eligible Assets and the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its Affiliates;Affiliates (other than in connection with the origination or acquisition of Eligible Assets and Purchased Assets); 120 BUSINESS.32732337.7
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses, it being understood and acknowledged that Seller and certain of their Affiliates are externally managed organizations managed by Advisor 121 BUSINESS.32732337.7 pursuant to the Advisory Agreement) only from its own assetsassets as the same become due and payable provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 otherother (except for business conducted on behalf of Seller by Advisor pursuant to the Advisory Agreement);
(hviii) 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 intends to shall remain solvent; provided solvent provided, that the foregoing shall not require any member, partner or shareholder of any Seller Person to make any additional capital contribution to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any Person (other than with the other Seller in accordance with the Transaction Document, 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 Servicing Agreement or any other Transaction Document);
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents);
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;Person (other than with the other Seller in accordance with the Transaction Documents); 122 BUSINESS.32732337.7
(lxii) 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;; 123 BUSINESS.32732337.7
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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 Seller and certain of their Affiliates are externally managed organizations managed by a common Affiliate pursuant to the Advisory Agreement);
(sxviii) Seller shall not pledge its assets to secure the obligations of any other Person;
(txix) Seller shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, division, consolidation, merger, sale or transfer of all or substantially all of its assets;
(xx) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxxi) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral Collateral, the Collection Account or the Collection Servicer 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Eligible Assets and Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurred.. 124 BUSINESS.32732337.7 125 BUSINESS.32732337.7
Appears in 1 contract
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt, 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:
(ai) such Seller shall own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by the Transaction DocumentsDocuments (including, without limitation, 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);
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted by the Transaction Documents;
(ciii) such Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) such Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) such Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except 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 PersonPerson and (ii) such assets shall also be listed on such Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any such Seller to make any additional capital contribution contributions to such Seller;
(iix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person[Reserved];
(kxi) such Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) 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;
(mxiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in such Seller and any Affiliates of such Seller or any other Person bound by the Seller’s limited liability company agreement 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;
(oxv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction, other than its Subordinate Loan;
(pxvi) 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 such Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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);
(r) 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;
(sxviii) such Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents;
(txix) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) such Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, whether now owned or hereafter acquired, other than (A) obligations under the Transaction Documents, (B) obligations under the documents evidencing the Purchased Assets, (C) the Subordinate Loan, and (CD) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by such Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained (it being understood that the amount of any trade debt denominated in an Applicable Currency other than the Base Currency 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
Sources: Master Repurchase Agreement (Blackstone Private Real Estate Credit & Income Fund)
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:
(ai) Seller shall own no assets, and shall not engage in any business, other than the assets (including, for the avoidance of doubt, Eligible Assets which Seller intends to propose as Purchased Assets) and transactions specifically contemplated by the Transaction Documents;
(bii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under Eligible Assets and the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its AffiliatesAffiliates (other than in connection with the origination or acquisition of Eligible Assets and Purchased Assets);
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses, it being understood and acknowledged that Seller and certain of their Affiliates are externally managed organizations managed by Advisor pursuant to the Advisory Agreement) only from its own assetsassets as the same become due and payable provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(div) Seller shall comply with the provisions of its organizational documents;
(ev) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;other (except for business conducted on behalf of Seller by Advisor pursuant to the Advisory Agreement); 129 BUSINESS.31481134.1132540646.2
(hviii) Seller shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its 130 BUSINESS.31481134.1132540646.2 contemplated business operations and intends to shall remain solvent; provided solvent provided, that the foregoing shall not require any member, partner or shareholder of any Seller Person to make any additional capital contribution to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any Person (other than with the other Seller in accordance with the Transaction Document, 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);
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents);
(kxi) 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);
(lxii) 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;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(q) Seller shall not engage in, seek or consent to any dissolution, 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);
(rxvii) 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;Affiliate (it being understood that Seller and certain of their Affiliates are externally managed organizations managed by a common Affiliate pursuant to the Advisory Agreement); 131 BUSINESS.31481134.1132540646.2 132 BUSINESS.31481134.1132540646.2
(sxviii) Seller shall not pledge its assets to secure the obligations of any other Personother
(xix) Seller shall not, to the fullest extent permitted by law, engage in any 133 BUSINESS.31481134.1132540646.2 dissolution, liquidation, division, consolidation, merger, sale or transfer of all or substantially all of its assets;
(txx) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxxi) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral Collateral, the Collection Account or the Collection Servicer 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.,
Appears in 1 contract
Sources: Master Repurchase Agreement (Franklin BSP Real Estate Debt BDC)
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:
(ai) Seller shall has not owned and will not own no any property or any other assets other than Purchased Assets, cash, the Transaction Documents, the Cash Management Account and incidental personal property sufficient for the acquisition and servicing of such assets, provided that the foregoing shall not prohibit Seller from owning prospective Purchased Assets for 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 not engaged and shall will not engage in any business, business other than the assets acquisition, ownership, financing and transactions specifically contemplated by disposition of Purchased Assets in accordance with the applicable provisions of the Transaction DocumentsDocuments and entering into servicing agreements;
(biii) Seller shall not make any loans or advances to any Affiliate or third party (other than advances under the Purchased Assets to BorrowersMortgagors) and shall not acquire obligations or securities of its Affiliates;
(civ) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets, provided that the foregoing shall not require any Person to make any capital contribution to Seller;
(dv) Seller shall comply with the provisions of its organizational documents;
(evi) Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvii) Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns (except to the extent consolidation is required or permitted under Requirements of Law);
(gviii) 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;
(hix) 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 intends to shall remain solvent; , provided that the foregoing shall not require any member, partner or shareholder of any Seller Person to make any additional capital contribution to such Seller;
(ix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jxi) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Person;
(kxii) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxiii) 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;
(mxiv) Seller shall, at all times, have at least one (1) Independent Manager;
(nxv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxvi) Seller shall not enter into any transaction with an Affiliate of Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvii) Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(qxviii) to the extent that Seller shall not engage inat any time uses stationery, seek invoices or consent to any dissolution, winding up, Division, liquidation, consolidation, merger, asset sale checks (except as expressly permitted by this Agreement or the other Transaction Documentsit being understood and agreed that Seller is an externally managed organization), transfer of membership interests or the like, or material amendment of its operating agreement (in each case other than as approved by Purchaser);
(r) 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;
(sxix) Seller shall not pledge its assets to secure the obligations of any other Person;
(txx) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxxi) Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty (60) days of the date incurred.
Appears in 1 contract
Sources: 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:
(ai) such Seller shall own no assets, and shall not engage in any business, other than the assets (including, for the avoidance of doubt, Eligible Assets which such Seller intends to propose as Purchased Assets) and transactions specifically contemplated by the Transaction Documents;
(bii) such Seller shall not make any loans or advances to any Affiliate or third party (other than advances under Eligible Assets and the Purchased Assets to Borrowers) and shall not acquire obligations or securities of its AffiliatesAffiliates (other than in connection with the origination or acquisition of Eligible Assets and Purchased Assets);
(ciii) 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 assetsassets as the same become due and payable provided that the foregoing shall not require any Person to make any capital contribution to any Seller;
(div) such Seller shall comply with the provisions of its organizational documents;
(ev) such Seller shall do all things necessary to observe its organizational formalities and to preserve its existence;
(fvi) such Seller shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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 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);
(hviii) 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 intends to shall remain solvent; provided solvent provided, that the foregoing shall not require any member, partner or shareholder of any Seller Person to make any additional capital contribution to such any Seller;
(iix) such Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any Person (other than with the other Seller in accordance with the Transaction Document, 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);
(jx) such Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents);
(kxi) 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);
(lxii) 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;
(mxiii) such Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) such Seller shall not enter into any transaction with an Affiliate of such Seller except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction;
(pxvi) such Seller shall maintain a sufficient number of employees in light of contemplated business operations;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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);
(r) 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);
(sxviii) such Seller shall not pledge its assets to secure the obligations of any other PersonPerson (other than with the other Seller in accordance with the Transaction Documents) other than to Purchaser pursuant to the Transaction Documents;
(txix) such Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entity; and
(uxx) such Seller shall not create, incur, assume or suffer to exist any Indebtedness or Lien in or on any of its property, assets, revenue, the Purchased Assets, the other Collateral or the Collection AccountCollateral, 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) unsecured trade payables, in an aggregate amount not to exceed $250,000 100,000 at any one time outstanding, incurred in the ordinary course of acquiring, owning, financing and disposing of the Eligible Assets and Purchased Assets; provided, however, that any such trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurred.
Appears in 1 contract
Sources: 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:
(ai) Seller shall own no assetsassets 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 (vi) 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 assets organization, acquisition, origination, ownership, hedging, administering, financing, servicing, management, enforcement and transactions specifically contemplated by disposition of Purchased Assets in accordance with the applicable provisions of the Transaction Documents;
(bii) 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 AffiliatesAffiliates (other than in connection with the origination or acquisition of Purchased Assets), in each case except as permitted or contemplated by the Transaction Documents;
(ciii) Seller shall pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets as the same shall become due;
(div) Seller shall comply with the provisions of its organizational documentsdocuments in all material respects;
(ev) Seller shall do all things necessary to observe its organizational limited liability company formalities and to preserve its existence;
(fvi) 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 PersonPerson and (ii) such assets shall also be listed on Seller’s own separate balance sheet) and file its own tax returns returns, if any (except to the extent consolidation is required or permitted under Requirements of Law);
(gvii) 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;
(hviii) 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 intends to shall remain solvent; provided provided, that the foregoing shall not require any member, partner or shareholder of any Seller to make any additional capital contribution contributions to such Seller;
(iix) Seller shall not commingle its funds or other assets with those of any Affiliate or any other Person, except as contemplated by this Agreement or any other Transaction Document, 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;
(jx) Seller shall maintain its properties, assets and accounts separate from those of any Affiliate or any other Personintentionally omitted;
(kxi) Seller shall not hold itself out to be responsible for the debts or obligations of any other Person;
(lxii) 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;
(mxiii) Seller shall, at all times, have at least one (1) Independent Manager;
(nxiv) 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 member holders of Seller, manager the equity interest in Seller and any Affiliates 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;
(oxv) Seller shall not enter into any transaction with an Affiliate of Seller (other than the Subordinate Loan) except on commercially reasonable terms substantially similar to those that would be available to with unaffiliated parties in an arm’s length transaction;
(pxvi) 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 operationsoperations provided that Seller shall not be required to maintain any employees;
(qxvii) Seller shall not engage in, seek or consent to any dissolution, 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)[reserved];
(r) 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;
(sxviii) Seller shall not pledge its assets to secure the obligations of any other PersonPerson other than to Purchaser pursuant to the Transaction Documents or under the Subordinate Loan;
(txix) Seller shall not form, acquire or hold any Subsidiary or own any equity interest in any other entitySubsidiary; and
(uxx) Seller shall not create, incur, incur or assume or suffer to exist any Indebtedness or Lien (other than in or on any of its property, assets, revenue, connection with the Purchased Assets, the other Collateral Subordinate Loan or the Collection Account, whether now owned or hereafter acquiredSubordinated 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, payables in an aggregate amount not to exceed $250,000 at any one time outstanding, incurred in the ordinary course of acquiringcourse; 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, owningno such value limit shall apply, financing and disposing of the Purchased Assets; provided, however, that (B) any such and all unsecured trade payables incurred by Seller shall be paid within sixty ninety (6090) days of the date incurredincurred unless the same are being contested in good faith and adequate reserves in respect of which are maintained).
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)