SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without the prior written consent of Administrative Agent, which consent shall not be unreasonably withheld or delayed, Borrower shall not (a) enter into, amend in any material respect (provided that Borrower shall provide Administrative Agent a copy of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent); (b) make any amendment to Borrower's partnership agreement or the organizational documents of any member of Borrower or any managing member or general partner, as applicable, of such member, in each case from the form thereof previously provided to Administrative Agent; (c) engage in any transaction with any affiliate of Borrower or Guarantor on other than fair market, arms'-length terms and conditions; (d) engage in any business other than the ownership, development, leasing and operation of the Property; (e) directly or indirectly guaranty the obligations of any other person or entity; (f) incur any additional indebtedness or other material obligation, other than (i) ordinary course obligations (excluding, however, any additional borrowed money) incurred in connection with Borrower's permitted scope of business as referred to above and (ii) liabilities ws4E6.tmp 21 associated with Swap Agreements; (g) suffer or permit any direct or indirect change in the ownership of Borrower; (h) cease to be owned and managed entirely, either directly or indirectly, by CBL & Associates Limited Partnership; and (i) permit the Property to become security for any other loan or other obligation; provided, however, that the consent of Requisite Lenders shall be required with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) of this Section 7.12, respectively. For purposes of this Section 7.12, "material agreement" shall mean any agreement which cannot, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement to the contrary, and provided no Default has occurred and is continuing, the following transfers shall be permitted without the consent of Requisite Lenders, provided notice of such proposed transfer shall have been provided to Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information as Administrative Agent may reasonably request): (i) transfers of less than fifty percent (50%) (in the aggregate) of the direct or indirect ownership interests in Borrower, provided that following such transfer voting control of the Borrower shall be retained by an Affiliate or Affiliates of Guarantor, or (ii) any transfer of direct or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent or any lenders pursuant to the terms of the Unsecured Agreement (whether or not the Unsecured Agreement is in effect at the time of such transaction): (A) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership in connection with the merger, reorganization or consolidation of CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership so long as CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership is the surviving entity.
Appears in 2 contracts
Samples: Loan Agreement (CBL & Associates Properties Inc), Loan Agreement (CBL & Associates Properties Inc)
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without Borrower represents and warrants that it at all times since its formation has been, and covenants and agrees that until the prior written consent of Administrative AgentLoan has been paid in full it shall, and its Organizational Documents shall provide that it shall, continue to be, a Special Purpose Entity. A Special Purpose Entity means a corporation, limited liability company or a limited partnership, which consent shall not be unreasonably withheld or delayedat all times since its formation has and, Borrower shall not on and after the date hereof, shall:
(a) enter intonot own (and has not owned) any asset or property other than (i) the Property, amend and (ii) such property as may be necessary for or incidental to its business purposes set forth in any material respect Section 9.10(b) below and (provided that Borrower shall provide Administrative Agent a copy iii) cash, accounts receivable associated with its business purposes set forth in Section 9.10(b) below and other ordinary course investments of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent); funds;
(b) make any amendment to Borrower's partnership agreement or the organizational documents of any member of Borrower or any managing member or general partner, as applicable, of such member, in each case from the form thereof previously provided to Administrative Agent; not engage (cand has not engaged) engage in any transaction with any affiliate of Borrower business, directly or Guarantor on other than fair marketindirectly, arms'-length terms and conditions; (d) engage in any business other than the ownership, development, leasing operation, leasing, financing and operation management of the Property; Property and conduct and operate its business as presently conducted and operated;
(c) not amend, alter, change or repeal the “Special Purpose Provisions” as set forth in, and as defined in, Borrower’s limited liability company agreement without the consent of Administrative Agent, nor amend, modify or otherwise change the Organizational Documents of Borrower without the prior consent of Administrative Agent in any manner that (i) violates the single purpose covenants set forth in this Section 9.10, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Requisite Lenders’ consent;
(d) maintain relationships comparable to an arm’s-length transaction with its Affiliates and enter into transactions with its Affiliates only on a commercially reasonable basis and on terms similar to those of an arm’s-length transaction;
(e) directly not incur, create or indirectly guaranty the obligations of assume any other person indebtedness, secured or entity; unsecured, direct or indirect, absolute or contingent (f) incur including guaranteeing any additional indebtedness or other material obligation), other than (i) ordinary course obligations (excludingthe indebtedness created by the Loan Documents, howeverthe Previous Loan Documents, or any additional borrowed money) incurred in connection with Borrower's permitted scope of business as referred to above and Interest Rate Protection Agreement, (ii) liabilities ws4E6.tmp 21 associated unsecured trade payables and operational debt not evidenced by a note; (iii) Borrower’s obligations under any permitted Leases, (iv) Borrower’s obligations with Swap Agreementsrespect to tenant improvements, tenant allowances or leasing commissions with respect to permitted Leases and (v) customary equipment leases and financing; provided that any indebtedness incurred pursuant to subclauses (ii) and (v) shall (1) be incurred in the ordinary course of the business of operating the Property, and (2) not exceed, in the aggregate, three percent (3%) of the outstanding principal balance of the Loan;
(f) not make any loans or advances to any Person (other than advances to any tenant for purposes relating to its Lease or any contractors or subcontractors) nor acquire debt obligations or securities of any Person;
(g) suffer or permit any direct or indirect change in remain solvent and pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets (to the ownership extent of Borrower; available cash flow);
(h) cease pay its own liabilities and expenses only out of its own funds and not the funds of any other Person (to be owned and managed entirely, either directly or indirectly, by CBL & Associates Limited Partnership; and the extent of available cash flow);
(i) permit comply with and observe in all material respects the Property laws of the state of its formation as they relate to become security for its organizational functions and responsibilities and other organizational formalities in order to maintain its separate existence;
(j) maintain all of its books, records and bank accounts separate from those of any other loan or Person;
(k) prepare separate financial statements, showing its assets and liabilities separate and apart from those of any other obligationPerson, and not have its assets listed on the financial statement of any other Person; provided, however, Borrower’s assets may be included in a consolidated financial statement with its Affiliates provided that the consent of Requisite Lenders appropriate notations shall be made on such consolidated financial statement to indicate the separateness of Borrower and its Affiliates and to indicate that none of any such Affiliate’s assets and credit are available to satisfy the debts and other obligations of Borrower;
(l) file its own tax returns, if any, as may be required under Applicable Law, to the extent not treated as a “disregarded entity”, and pay any Taxes so required to be paid under Applicable Law unless such taxes are contested in accordance with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) Section 4.4 of this Section 7.12Agreement;
(m) maintain its books, respectively. For purposes of this Section 7.12records, "material agreement" shall mean any agreement which cannotresolutions and agreements as official records;
(n) be, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement and at all times hold itself out to the contrary, public and provided no Default has occurred all other Persons as a legal entity separate and is continuing, the following transfers shall be permitted without the consent distinct from any other entity (including any Affiliate or any constituent party of Requisite Lenders, provided notice Borrower);
(o) conduct its business in its own name and correct any known misunderstanding regarding its separate identity;
(p) not identify itself or any of such proposed transfer shall have been provided to Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information its Affiliates as Administrative Agent may reasonably request): (i) transfers of less than fifty percent (50%) (in the aggregate) a division or part of the direct or indirect ownership interests other;
(q) intentionally deleted;
(r) maintain adequate capital for the normal obligations reasonably foreseeable in Borrowera business of its size and character and in light of its contemplated business operations, provided that following such transfer voting control this subsection (r) shall not be deemed to require any Person to make additional capital contributions to Borrower;
(s) not commingle its funds and other assets with assets of the Borrower shall be retained by an any Affiliate or Affiliates of Guarantor, or (ii) any transfer of direct or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent constituent party or any lenders pursuant other Person and hold all of its assets in its own name;
(t) maintain its assets in such a manner that it will not be materially costly or difficult to segregate, ascertain or identify its individual asset or assets, as the terms case may be, from those of the Unsecured Agreement any other Person;
(whether or not the Unsecured Agreement is in effect at the time of such transaction): (Au) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership except in connection with the Previous Loan Documents or for the pledge of assets to Administrative Agent for the benefit of Lenders in connection with the Loan, (i) not pledge its assets for the benefit of any other Person, (ii) not guarantee or become obligated for the debts of any other Person, and (iii) not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person;
(v) not permit any constituent party independent access to its bank accounts;
(w) maintain a sufficient number of employees, if any, in light of its contemplated business operations;
(x) not form, acquire or hold an interest in any subsidiary;
(y) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including paying for office space and services that are performed by any employee of any Affiliate on behalf of Borrower;
(z) to the fullest extent permitted by law, not seek or effect or cause any constituent party to seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, or the sale of substantially all of the assets of Borrower;
(aa) not fund the operations of any of its Affiliates or pay their expenses;
(bb) keep careful records of all transactions by and between Borrower and its Affiliates and all such transactions shall be completely and accurately documented and payables shall be accurately and timely recorded;
(cc) obtain, from and after the Effective Date, the prior unanimous written consent of all other managing members/directors to (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or consolidation proceeding involving Borrower; institute any proceedings under any applicable insolvency law or otherwise seek any relief for Borrower under any laws relating to the relief from debts or protection of CBL & Associates Propertiesdebtors generally; (ii) seek or consent to the appointment of a receiver, Inc. liquidator, assignee, trustee, sequestrator, custodian or CBL & Associates Limited Partnership so long any similar official for Borrower or a substantial portion of its properties; (iii) make any assignment for the benefit of Borrower’s creditors, as CBL & Associates Properties, Inc. the case may be; or CBL & Associates Limited Partnership is (iv) take any action in furtherance of the surviving entityforegoing.
Appears in 2 contracts
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.), Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without Borrower represents and warrants that it at all times since its formation has been, and covenants and agrees that until the prior written consent of Administrative AgentLoan has been paid in full it shall, and its Organizational Documents shall provide that it shall, continue to be, a Special Purpose Entity. A Special Purpose Entity means a corporation, limited liability company or a limited partnership, which consent shall not be unreasonably withheld or delayedat all times since its formation has and, Borrower shall not on and after the date hereof, shall:
(a) enter intonot own (and has not owned) any asset or property other than (i) the Property, amend and (ii) such property as may be necessary for or incidental to its business purposes set forth in any material respect Section 9.10(b) below and (provided that Borrower shall provide Administrative Agent a copy iii) cash, accounts receivable associated with its business purposes set forth in Section 9.10(b) below and other ordinary course investments of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent); funds;
(b) make any amendment to Borrower's partnership agreement or the organizational documents of any member of Borrower or any managing member or general partner, as applicable, of such member, in each case from the form thereof previously provided to Administrative Agent; not engage (cand has not engaged) engage in any transaction with any affiliate of Borrower business, directly or Guarantor on other than fair marketindirectly, arms'-length terms and conditions; (d) engage in any business other than the ownership, development, leasing operation, leasing, financing and operation management of the Property; Property and conduct and operate its business as presently conducted and operated;
(c) not amend, alter, change or repeal the “Special Purpose Provisions” as set forth in, and as defined in, Borrower’s limited liability company agreement without the consent of Administrative Agent, nor amend, modify or otherwise change the Organizational Documents of Borrower without the prior consent of Administrative Agent in any manner that (i) violates the single purpose covenants set forth in this Section 9.10, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Requisite Lenders’ consent;
(d) maintain relationships comparable to an arm’s-length transaction with its Affiliates and enter into transactions with its Affiliates only on a commercially reasonable basis and on terms similar to those of an arm’s-length transaction (acknowledging that Borrower may enter into agreements with Affiliates relating to Sponsor maintaining Control of Borrower, so long as such agreements are not binding upon any successor owner of the Property or, following the consummation of a Mezzanine Loan Enforcement Action, Borrower or the Property and without any adverse effect on Borrower, the Property or Mezzanine Lender, and will not result in any liability for which any such successor owner or, following the consummation of a Mezzanine Loan Enforcement Action, Borrower, the Property or Mezzanine Lender, could be liable, and without any adverse effect on Borrower, the Property or Mezzanine Lender);
(e) directly not incur, create or indirectly guaranty the obligations of assume any other person indebtedness, secured or entity; unsecured, direct or indirect, absolute or contingent (f) incur including guaranteeing any additional indebtedness or other material obligation), other than (i) ordinary course obligations (excludingindebtedness paid off in full on or before the date hereof, however, any additional borrowed money) incurred in connection with Borrower's permitted scope of business as referred to above and (ii) liabilities ws4E6.tmp 21 associated the indebtedness created by the Loan Documents, the Previous Loan Documents, or any Interest Rate Protection Agreement, (iii) unsecured trade payables and operational debt not evidenced by a note and shall not remain outstanding for more than ninety (90) days, unless being contested by Borrower in accordance with Swap Agreementsthe Loan Documents; (iv) Borrower’s obligations under any permitted Leases, (v) Borrower’s obligations with respect to tenant improvements, tenant allowances or leasing commissions with respect to permitted Leases and (vi) customary equipment leases and financing; provided that any indebtedness incurred pursuant to subclauses (iii) and (vi) shall (1) be incurred in the ordinary course of the business of operating the Property, and (2) not exceed, in the aggregate, three percent (3%) of the outstanding principal balance of the Loan (as applicable “Permitted Indebtedness”);
(f) not make any loans or advances to any Person (other than advances to any tenant for purposes relating to its Lease or any contractors or subcontractors) nor acquire debt obligations or securities of any Person;
(g) suffer or permit intend to remain solvent and pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets (to the extent of available cash flow); provided that this subsection (g) shall not be deemed to require any direct or indirect change in the ownership of Person to make additional capital contributions to Borrower; ;
(h) cease pay its own liabilities and expenses only out of its own funds and not the funds of any other Person (to be owned and managed entirely, either directly or indirectly, by CBL & Associates Limited Partnership; and the extent of available cash flow);
(i) permit comply with and observe in all material respects the Property laws of the state of its formation as they relate to become security for its organizational functions and responsibilities and other organizational formalities in order to maintain its separate existence;
(j) maintain all of its books, records and bank accounts separate from those of any other loan or Person;
(k) prepare separate financial statements, showing its assets and liabilities separate and apart from those of any other obligationPerson, and not have its assets listed on the financial statement of any other Person; provided, however, Borrower’s assets may be included in a consolidated financial statement with its Affiliates provided that the consent of Requisite Lenders shall be required with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) any such consolidated financial statements do not suggest in any way that Borrower’s assets are available to satisfy the claims of its Affiliate’s creditors and (ii) such assets shall also be listed on Borrower’s own separate balance sheet;
(l) file its own tax returns, if any, as may be required under Applicable Law, to the extent not treated as a “disregarded entity”, and pay any Taxes so required to be paid under Applicable Law unless such taxes are contested in accordance with Section 4.4 of this Section 7.12Agreement;
(m) maintain its books, respectively. For purposes of this Section 7.12records, "material agreement" shall mean any agreement which cannotresolutions and agreements as official records;
(n) be, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement and at all times hold itself out to the contrary, public and provided no Default has occurred all other Persons as a legal entity separate and is continuing, the following transfers shall be permitted without the consent distinct from any other entity (including any Affiliate or any constituent party of Requisite Lenders, provided notice Borrower);
(o) conduct its business in its own name and correct any known misunderstanding regarding its separate identity;
(p) not identify itself or any of such proposed transfer shall have been provided to Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information its Affiliates as Administrative Agent may reasonably request): (i) transfers of less than fifty percent (50%) (in the aggregate) a division or part of the direct or indirect ownership interests other;
(q) intentionally deleted;
(r) maintain adequate capital for the normal obligations reasonably foreseeable in Borrowera business of its size and character and in light of its contemplated business operations, provided that following such transfer voting control this subsection (r) shall not be deemed to require any Person to make additional capital contributions to Borrower;
(s) not commingle its funds and other assets with assets of the Borrower shall be retained by an any Affiliate or Affiliates of Guarantor, or (ii) any transfer of direct or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent constituent party or any lenders pursuant other Person and hold all of its assets in its own name;
(t) maintain its assets in such a manner that it will not be materially costly or difficult to segregate, ascertain or identify its individual asset or assets, as the terms case may be, from those of the Unsecured Agreement any other Person;
(whether or not the Unsecured Agreement is in effect at the time of such transaction): (Au) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership except in connection with the Previous Loan Documents or for the pledge of assets to Administrative Agent for the benefit of Lenders in connection with the Loan, (i) not pledge its assets for the benefit of any other Person, (ii) not guarantee or become obligated for the debts of any other Person, and (iii) not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person;
(v) not permit any constituent party independent access to its bank accounts;
(w) maintain a sufficient number of employees, if any, in light of its contemplated business operations;
(x) not form, acquire or hold an interest in any subsidiary;
(y) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including paying for office space and services that are performed by any employee of any Affiliate on behalf of Borrower;
(z) to the fullest extent permitted by law, not seek or effect or cause any constituent party to seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, or the sale of substantially all of the assets of Borrower;
(aa) not fund the operations of any of its Affiliates or pay their expenses;
(bb) keep careful records of all transactions by and between Borrower and its Affiliates and all such transactions shall be completely and accurately documented and payables shall be accurately and timely recorded;
(cc) obtain, from and after the Effective Date, the prior unanimous written consent of all other managing members/directors to (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or consolidation proceeding involving Borrower; institute any proceedings under any applicable insolvency law or otherwise seek any relief for Borrower under any laws relating to the relief from debts or protection of CBL & Associates Propertiesdebtors generally; (ii) seek or consent to the appointment of a receiver, Inc. liquidator, assignee, trustee, sequestrator, custodian or CBL & Associates Limited Partnership so long any similar official for Borrower or a substantial portion of its properties; (iii) make any assignment for the benefit of Borrower’s creditors, as CBL & Associates Properties, Inc. the case may be; or CBL & Associates Limited Partnership is (iv) take any action in furtherance of the surviving entityforegoing.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without Borrower represents and warrants that it at all times since its formation has been, and covenants and agrees that until the prior written consent of Administrative AgentLoan has been paid in full it shall, and its Organizational Documents shall provide that it shall, continue to be, a Special Purpose Entity. A Special Purpose Entity means a corporation, limited liability company or a limited partnership, which consent shall not be unreasonably withheld or delayedat all times since its formation has and, Borrower shall not on and after the date hereof, shall:
(a) enter intonot own (and has not owned) any asset or property other than (i) the Property, amend and (ii) such property as may be necessary for or incidental to its business purposes set forth in any material respect Section 9.10(b) below and (provided that Borrower shall provide Administrative Agent a copy iii) cash, accounts receivable associated with its business purposes set forth in Section 9.10(b) below and other ordinary course investments of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent); funds;
(b) make any amendment to Borrower's partnership agreement or the organizational documents of any member of Borrower or any managing member or general partner, as applicable, of such member, in each case from the form thereof previously provided to Administrative Agent; not engage (cand has not engaged) engage in any transaction with any affiliate of Borrower business, directly or Guarantor on other than fair marketindirectly, arms'-length terms and conditions; (d) engage in any business other than the ownership, development, leasing operation, leasing, financing and operation management of the Property; (e) directly or indirectly guaranty the obligations of any other person or entity; (f) incur any additional indebtedness or other material obligation, other than (i) ordinary course obligations (excluding, however, any additional borrowed money) incurred in connection with Borrower's permitted scope of Property and conduct and operate its business as referred to above presently conducted and operated;
(iic) liabilities ws4E6.tmp 21 associated with Swap Agreements; (g) suffer not amend, alter, change or permit any direct or indirect change in repeal the ownership of Borrower; (h) cease to be owned and managed entirely, either directly or indirectly, by CBL & Associates Limited Partnership; and (i) permit the Property to become security for any other loan or other obligation; provided, however, that the consent of Requisite Lenders shall be required with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) of this Section 7.12, respectively. For purposes of this Section 7.12, "material agreement" shall mean any agreement which cannot, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement to the contrary“Special Purpose Provisions” as set forth in, and provided no Default has occurred and is continuingas defined in, the following transfers shall be permitted Borrower’s limited liability company agreement without the consent of Requisite LendersAdministrative Agent, provided notice nor amend, modify or otherwise change the Organizational Documents of such proposed transfer shall have been provided to Borrower without the prior consent of Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information as Administrative Agent may reasonably request): in any manner that (i) transfers of less than fifty percent (50%) (violates the single purpose covenants set forth in the aggregate) of the direct or indirect ownership interests in Borrower, provided that following such transfer voting control of the Borrower shall be retained by an Affiliate or Affiliates of Guarantorthis Section 9.10, or (ii) amends, modifies or otherwise changes any transfer of direct provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or by its terms cannot be modified without Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent or any lenders pursuant to the terms of the Unsecured Agreement (whether or not the Unsecured Agreement is in effect at the time of such transaction): (A) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership in connection with the merger, reorganization or consolidation of CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership so long as CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership is the surviving entity.’ consent;
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without Borrower represents and warrants that it at all times since its formation has been, and covenants and agrees that until the prior written consent of Administrative AgentLoan has been paid in full it shall, and its Organizational Documents shall provide that it shall, continue to be, a Special Purpose Entity. A Special Purpose Entity means a corporation, limited liability company or a limited partnership, which consent shall not be unreasonably withheld or delayedat all times since its formation has and, Borrower shall not on and after the date hereof, shall:
(a) enter intonot own (and has not owned) any asset or property other than (i) the Property, amend and (ii) such property as may be necessary for or incidental to its business purposes set forth in any material respect Section 9.10(b) below and (provided that Borrower shall provide Administrative Agent a copy iii) cash, accounts receivable associated with its business purposes set forth in Section 9.10(b) below and other ordinary course investments of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent); funds;
(b) make any amendment to Borrower's partnership agreement or the organizational documents of any member of Borrower or any managing member or general partner, as applicable, of such member, in each case from the form thereof previously provided to Administrative Agent; not engage (cand has not engaged) engage in any transaction with any affiliate of Borrower business, directly or Guarantor on other than fair marketindirectly, arms'-length terms and conditions; (d) engage in any business other than the ownership, development, leasing operation, leasing, financing and operation management of the Property; Property and conduct and operate its business as presently conducted and operated;
(c) not amend, alter, change or repeal the “Special Purpose Provisions” as set forth in, and as defined in, Borrower’s limited liability company agreement without the consent of Lender, nor amend, modify or otherwise change the Organizational Documents of Borrower without the prior consent of Lender in any manner that (i) violates the single purpose covenants set forth in this Section 9.10, or (ii) amends, modifies or otherwise changes any provision thereof that by its terms cannot be modified at any time when the Loan is outstanding or by its terms cannot be modified without Lender’ consent;
(d) maintain relationships comparable to an arm’s-length transaction with its Affiliates and enter into transactions with its Affiliates only on a commercially reasonable basis and on terms similar to those of an arm’s-length transaction;
(e) directly not incur, create or indirectly guaranty the obligations of assume any other person indebtedness, secured or entity; unsecured, direct or indirect, absolute or contingent (f) incur including guaranteeing any additional indebtedness or other material obligation), other than (i) ordinary course obligations (excludingthe indebtedness created by the Loan Documents, howeveror any Interest Rate Protection Agreement, any additional borrowed money) incurred in connection with Borrower's permitted scope of business as referred to above and (ii) liabilities ws4E6.tmp 21 associated unsecured trade payables and operational debt not evidenced by a note; (iii) Borrower’s obligations under any permitted Leases, (iv) Borrower’s obligations with Swap Agreementsrespect to tenant improvements, tenant allowances or leasing commissions with respect to permitted Leases and (v) customary equipment leases and financing; provided that any indebtedness incurred pursuant to subclauses (ii) and (v) shall (1) be incurred in the ordinary course of the business of operating the Property, and (2) not exceed, in the aggregate, three percent (3%) of the outstanding principal balance of the Loan;
(f) not make any loans or advances to any Person (other than advances to any tenant for purposes relating to its Lease or any contractors or subcontractors) nor acquire debt obligations or securities of any Person;
(g) suffer or permit any direct or indirect change in remain solvent and pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets (to the ownership extent of Borrower; available cash flow);
(h) cease pay its own liabilities and expenses only out of its own funds and not the funds of any other Person (to be owned and managed entirely, either directly or indirectly, by CBL & Associates Limited Partnership; and the extent of available cash flow);
(i) permit comply with and observe in all material respects the Property laws of the state of its formation as they relate to become security for its organizational functions and responsibilities and other organizational formalities in order to maintain its separate existence;
(j) maintain all of its books, records and bank accounts separate from those of any other loan or Person;
(k) prepare separate financial statements, showing its assets and liabilities separate and apart from those of any other obligationPerson, and not have its assets listed on the financial statement of any other Person; provided, however, Borrower’s assets may be included in a consolidated financial statement with its Affiliates provided that the consent of Requisite Lenders appropriate notations shall be made on such consolidated financial statement to indicate the separateness of Borrower and its Affiliates and to indicate that none of any such Affiliate’s assets and credit are available to satisfy the debts and other obligations of Borrower;
(l) file its own tax returns, if any, as may be required under Applicable Law, to the extent not treated as a “disregarded entity”, and pay any Taxes so required to be paid under Applicable Law unless such taxes are contested in accordance with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) Section 4.4 of this Section 7.12Agreement;
(m) maintain its books, respectively. For purposes of this Section 7.12records, "material agreement" shall mean any agreement which cannotresolutions and agreements as official records;
(n) be, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement and at all times hold itself out to the contrary, public and provided no Default has occurred all other Persons as a legal entity separate and is continuing, the following transfers shall be permitted without the consent distinct from any other entity (including any Affiliate or any constituent party of Requisite Lenders, provided notice Borrower);
(o) conduct its business in its own name and correct any known misunderstanding regarding its separate identity;
(p) not identify itself or any of such proposed transfer shall have been provided to Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information its Affiliates as Administrative Agent may reasonably request): (i) transfers of less than fifty percent (50%) (in the aggregate) a division or part of the direct or indirect ownership interests other;
(q) intentionally deleted;
(r) maintain adequate capital for the normal obligations reasonably foreseeable in Borrowera business of its size and character and in light of its contemplated business operations, provided that following such transfer voting control this subsection (r) shall not be deemed to require any Person to make additional capital contributions to Borrower;
(s) not commingle its funds and other assets with assets of the Borrower shall be retained by an any Affiliate or Affiliates of Guarantor, or (ii) any transfer of direct or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent constituent party or any lenders pursuant other Person and hold all of its assets in its own name;
(t) maintain its assets in such a manner that it will not be materially costly or difficult to segregate, ascertain or identify its individual asset or assets, as the terms case may be, from those of the Unsecured Agreement any other Person;
(whether or not the Unsecured Agreement is in effect at the time of such transaction): (Au) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership except in connection with the pledge of assets to Lender in connection with the Loan, (i) not pledge its assets for the benefit of any other Person, (ii) not guarantee or become obligated for the debts of any other Person, and (iii) not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations of any other Person;
(v) not permit any constituent party independent access to its bank accounts;
(w) maintain a sufficient number of employees, if any, in light of its contemplated business operations;
(x) not form, acquire or hold an interest in any subsidiary;
(y) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including paying for office space and services that are performed by any employee of any Affiliate on behalf of Borrower;
(z) to the fullest extent permitted by law, not seek or effect or cause any constituent party to seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, or the sale of substantially all of the assets of Borrower;
(aa) not fund the operations of any of its Affiliates or pay their expenses;
(bb) keep careful records of all transactions by and between Borrower and its Affiliates and all such transactions shall be completely and accurately documented and payables shall be accurately and timely recorded;
(cc) obtain, from and after the Effective Date, the prior unanimous written consent of all other managing members/directors to (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or consolidation proceeding involving Borrower; institute any proceedings under any applicable insolvency law or otherwise seek any relief for Borrower under any laws relating to the relief from debts or protection of CBL & Associates Propertiesdebtors generally; (ii) seek or consent to the appointment of a receiver, Inc. liquidator, assignee, trustee, sequestrator, custodian or CBL & Associates Limited Partnership so long any similar official for Borrower or a substantial portion of its properties; (iii) make any assignment for the benefit of Borrower’s creditors, as CBL & Associates Properties, Inc. the case may be; or CBL & Associates Limited Partnership is (iv) take any action in furtherance of the surviving entityforegoing.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
SPECIAL COVENANTS; SINGLE PURPOSE ENTITY. Without the prior written reasonable consent of Administrative AgentLender, which consent shall not be unreasonably withheld and except as otherwise specifically provided herein or delayed, Borrower shall not (a) enter into, amend in any material respect (provided that Borrower shall provide Administrative Agent a copy of any amendments, whether or not material) or terminate any material agreement providing for the development, management, leasing or operation of the Property other Loan Documents, neither Borrower nor Member shall (approval of any such other material agreement not to be unreasonably withheld by Administrative Agent)a)intentionally omitted; (b) make or permit any amendment to Borrower's partnership agreement or the organizational documents of any member Organizational Documents of Borrower or any managing member or general partner, as applicable, of such memberMember, in each case from which would violate the form thereof previously provided to Administrative AgentSingle Purpose Entity Requirements set forth in this Agreement; (c) engage (i) except for sales or leases of one or more Properties entered into in accordance with this Agreement, the Mortgage or any of the other Loan Documents, sell or otherwise dispose of, or create, assume or permit to exist any security interest, lien or other encumbrance on, all or any portion of Borrower’s interest in any transaction with Property, or (ii) agree, for the benefit of any affiliate of Borrower or Guarantor on Person other than fair marketLender, arms'-length terms and conditionsnot to create, assume or permit to exist any security interest, lien or other encumbrance on all or any portion of Borrower’s interest in any Property; (d) engage except to reflect the Sale of a Property pursuant to Section 2.8 hereof, in any business connection with a casualty or condemnation, or as otherwise permitted by the Mortgage or the other than Loan Documents, amend the ownership, development, leasing and operation of the PropertyMaster Lease with respect to such Properties; (e) directly or indirectly guaranty the obligations of any other person or entity; (f) incur any additional indebtedness or other material obligation, other than (i) ordinary course obligations (excluding, however, any additional borrowed money) incurred in connection with Borrower's permitted scope of business as referred to above and (ii) liabilities ws4E6.tmp 21 associated with Swap Agreements; (g) suffer or permit any direct or indirect change in the ownership of Borrower that causes a Default under Article 4 of this Agreement; (f) create, incur or permit to exist any liabilities resulting from borrowings, loans or advances, whether secured or unsecured, other than (i) under the Loan Documents, (ii) as permitted under the Single Purpose Entity Requirements set forth in this Agreement, or (iii) in conjunction with various existing or prospective intercompany loans by and between Borrower and Borrower’s Affiliates; (g) incur or permit to incur any liens or encumbrances on Borrower’s assets or Member’s membership interest in Borrower other than liens or encumbrances described in Section 6.13 of this Agreement; or (h) cease otherwise fail to be owned and managed entirelysatisfy the Single Purpose Entity Requirements. Upon Borrower’s satisfaction of Borrower’s Obligations under the Loan, either directly or indirectlyLender shall provide to Borrower promptly upon Borrower’s request therefor, by CBL & Associates Limited Partnership; and (i) permit the Property to become security for any other loan or other obligation; provided, however, that the consent written confirmation of Requisite Lenders shall be required with respect to any material amendment or change in ownership referred to in clauses (b), (g), (h) and (i) of this Section 7.12, respectively. For purposes of this Section 7.12, "material agreement" shall mean any agreement which cannot, by its terms, be terminated upon thirty days notice, or which involves annual expenditures (on an actual or projected basis) in excess of $1,000,000.00. Notwithstanding anything in this Agreement to the contrary, and provided no Default has occurred and is continuing, the following transfers shall be permitted without the consent of Requisite Lenders, provided notice of such proposed transfer shall have been provided to Administrative Agent not less than thirty (30) days prior to such occurrence (which notice shall include the proposed transfer documents, corporate and financial information about the proposed transferee(s) and such additional information as Administrative Agent may reasonably request): (i) transfers of less than fifty percent (50%) (in the aggregate) of the direct or indirect ownership interests in Borrower, provided that following such transfer voting control of the Borrower shall be retained by an Affiliate or Affiliates of Guarantor, or (ii) any transfer of direct or indirect ownership interests in Borrower to an Affiliate of Affiliates of Guarantor. In no event or circumstances shall Administrative Agent's or Requisite Lenders' consent or approval be required with respect to the following transactions provided the same would be permitted without the necessity of prior consent thereto by agent or any lenders pursuant to the terms of the Unsecured Agreement (whether or not the Unsecured Agreement is in effect at the time of such transaction): (A) the trading or issuance in the normal course of business of shares or other securities of CBL & Associates Properties, Inc. in the public or private markets, (B) the transfer, sale or issuance in the normal course of business of operating partnership units or other securities of CBL & Associates Limited Partnership in the public or private markets, or (C) the issuance, transfer or sale of share of CBL & Associates Properties, Inc. or of operating partnership units of CBL & Associates Limited Partnership in connection with the merger, reorganization or consolidation of CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership so long as CBL & Associates Properties, Inc. or CBL & Associates Limited Partnership is the surviving entitysame.
Appears in 1 contract
