Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral or (B) acting as a member of a limited liability company that owns a portion of the Collateral, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion of the Collateral, or (B) acting as a member of the limited liability company that owns a portion of the Collateral, (iii) has not had and will not have any assets other than those related to a portion of the Collateral or its member interest in the limited liability company that owns a portion of the Collateral, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Loan and liabilities in the ordinary course of business relating to the ownership of the Collateral, (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions.
Appears in 3 contracts
Samples: Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC)
Special Purpose Bankruptcy Remote Entity. Borrower Mezzanine Borrower, each general partner thereof, Property Owner and its sole general partner shall each continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote EntitySPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral Property or (B) acting as a general partner of the limited partnership that owns the Property or member of a the limited liability company that owns a portion of the CollateralProperty, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion the Property, (B) acting as general partner of the Collateral, limited partnership that owns the Property or (BC) acting as a member of the limited liability company that owns a portion of the CollateralProperty, as applicable, (iii) has not had and will not have any assets other than those related to a portion of the Collateral Property or its partnership or member interest in the limited partnership or limited liability company that owns a portion of the CollateralProperty, as applicable, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation corporation, has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property the Property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (except that, if permitted by Mortgage Lender and required by Federal income tax law, such Entities may file consolidated income tax returns), (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Mezzanine Loan and liabilities in the ordinary course of business relating to the ownership and operation of the Collateral, Property; (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Mezzanine Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Mezzanine Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions. Notwithstanding anything to the contrary contained in this subsection (o), Mezzanine Borrower will be deemed in compliance with the terms of this subsection (o) if Mezzanine Borrower complies with all of the single purpose and separateness covenants that are applicable to Property Owner as contained in the Mortgage Loan Documents.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Mack Cali Realty Corp), Mezzanine Loan Agreement (Mack Cali Realty L P)
Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral or (B) acting as a member of a limited liability company that owns a portion of the Collateral, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion of the Collateral, or (B) acting as a member of the limited liability company that owns a portion of the Collateral, (iii) has not had and will not have any assets other than those related to a portion of the Collateral or its member interest in the limited liability company that owns a portion of the Collateral, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended Senior Loan Deposit Account Agreement and Restated the Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Loan, the Senior Loan and liabilities in the ordinary course of business relating to the ownership of the Collateral, (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan, the Senior Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Loan and the Senior Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Senior Loan Agreement, by the First Amendment Agreement and by Section 2.2 hereof, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of the Original Senior Loan Agreement, by the First Amendment Agreement and by Section 2.2 hereof, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions.
Appears in 2 contracts
Samples: Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC)
Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral Properties or (B) acting as a general partner of the limited partnership that owns the Properties or member of a the limited liability company that owns a portion of the CollateralProperties, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion the Properties, (B) acting as general partner of the Collateral, limited partnership that owns the Properties or (BC) acting as a member of the limited liability company that owns a portion of the CollateralProperties, as applicable, (iii) has not had and will not have any assets other than those related to a portion of the Collateral Properties or its partnership or member interest in the limited partnership or limited liability company that owns a portion of the CollateralProperties, as applicable, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation corporation, has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will may dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property any Property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Loan and liabilities in the ordinary course of business relating to the ownership and operation of the Collateral, Properties; (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness Debt and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness Debt is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions.
Appears in 1 contract
Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is will be organized solely for the purpose of (Ax) owning a portion owning, operating, or managing the Property or (y) acting as the managing member of the Collateral limited liability company which owns, operates or manages the Property or (Bz) acting as the general partner of a limited partnership which owns, operates, or manages the Property, (ii) has not and will not engage in any business unrelated to (x) the ownership, operation, or management of the Property or (y) acting as a member of a limited liability company that owns a portion of the Collateralwhich owns, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion of the Collateraloperates, or manages the Property or (Bz) acting as a member general partner of a limited partnership which owns, operates, or manages the limited liability company that owns a portion of the CollateralProperty, (iii) has not had and will not have any assets other than (x) those related to a portion of the Collateral Property or (y) its member interest in the limited liability company that owns a portion of which owns, operates, or manages the CollateralProperty or (z) its general partnership interest in the limited partnership which owns, operates, or manages the Property as applicable, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, consolidation or merger, and, except as otherwise expressly permitted by this Agreement, has not and will not engage in, seek or consent to any asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company)shareholder interests, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, has and will have as its only general partners, general partners which are and will be Special Purpose Bankruptcy Remote Entities that which are corporations, (vi) if such entity is a corporation corporation, at all relevant times, has and will have at least one Independent Director, and has not caused or allowed and will not cause or allow (vii) the board of directors of such entity to has not taken and will not take any action requiring the unanimous affirmative vote of 100% of the members of its the board of directors unless an all of the directors, including without limitation all Independent Director Directors, shall have participated in such vote, (viiviii) has not and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (ix) if such entity is a limited liability company, has and will have at least one member that is and will be a Special Purpose Bankruptcy Remote Entity that which is and will be a corporation corporation, and such corporation is and will be the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ixx) without the unanimous consent of all of its the partners, directors (including without limitation all Independent Directors) or members, as applicable, shall has not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings and will not with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interestinterest (a) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally; (Bb) dissolveseek or consent to the appointment of a receiver, liquidateliquidator, consolidateassignee, mergetrustee, sequestrator, custodian or sell any similar official for such entity or all or substantially all any portion of its assets or the assets of such entity's properties; (c) make any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and will maintain adequate capital assignment for the normal obligations reasonably foreseeable in a business benefit of its size and character and in light of its contemplated business operationssuch entity's creditors; or (d) take any action that might cause such entity to become insolvent, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returnsperson or entity, (xiiixii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xivxiii) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Personentity, (xvxiv) has held and will hold its assets in its own name, (xvixv) has conducted and will conduct its business in its name, ; (xviixvi) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Personperson or entity, (xviiixvii) has paid and will pay its own liabilities, including the salaries of its own employees, only liabilities out of its own funds and assets, (xixxviii) has observed and will observe all partnership, corporate or limited liability company formalities, formalities as applicable, (xxxix) has maintained and will maintain an arm'sarms-length relationship with its Affiliatesaffiliates, (xxixx) (a) if such entity owns the Property has and will have no indebtedness other than the Loan Debt, amounts owing under the Development Agreement, and liabilities the Management Agreement, and unsecured trade payables in the ordinary course of business relating to the ownership and operation of the CollateralProperty which (1) do not exceed, at any time, a maximum amount of one percent (1%) of the Loan and (2) are paid within ninety (90) days of the date incurred, or (b) if such entity acts as the general partner of a limited partnership which owns the Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as general partner of the limited partnership which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within ninety (90) days of the date incurred, or (c) if such entity acts as a member of a limited liability company which owns the Property has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as a member of the limited liability company which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within ninety (90) days of the date incurred, (xxiixxi) has not and will not assume or guarantee or become obligated for the debts of any other Person entity or hold out its credit as being available to satisfy the obligations of any other Person entity except for the Indebtedness and any Other Loan and the liabilities permitted made pursuant to this the Master Financing Facility Agreement, (xxiiixxii) has not acquired and will not acquire obligations or securities of its partners, members or shareholders, (xxivxxiii) has allocated and will allocate fairly and reasonably any overhead for shared expenses, including, shared office space and uses separate stationerystationary, invoices and checks, (xxvxxiv) except in connection with the Loan pursuant hereto, has not pledged and will not pledge its assets for the benefit of any other Personperson or entity, (xxvixxv) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Personperson or entity, (xxviixxvi) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Personperson or entity, (xxixxxvii) has not identified and will not identify its partners, members or shareholders, or any Affiliate affiliates of any of them, them as a division or part of it, (xxxxxviii) except as permitted by Section 2.2 if such entity is a limited liability company, such entity shall dissolve only upon the bankruptcy of the Original Loan Agreementmanaging member, by the First Amendment and by Section 2.2 hereofsuch entity's articles of organization, certificate of formation and/or operating agreement, as applicable, shall contain such provision, (xxix) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates its affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm'sarms-length transaction with an unrelated third party, (xxx) has paid and will pay the salaries of its own employees from its own funds, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness maintained and will not constitute a claim against it maintain adequate capital in the event that cash flow in excess light of the amount required to pay the Indebtedness is insufficient to pay such obligation, its contemplated business operations and (xxxii) if such entity is a corporationlimited liability company or limited partnership, it is required to consider the interests of its creditors in connection with all corporate actions.and such entity has one or more managing members or general partners, as applicable, then such entity shall continue (and not
Appears in 1 contract
Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote EntitySPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is will be organized solely for the purpose of (Ax) owning a portion owning, operating, or managing the Property or (y) acting as the managing member of the Collateral limited liability company which owns, operates or manages the Property or (Bz) acting as the general partner of a limited partnership which owns, operates, or manages the Property, (ii) has not and will not engage in any business unrelated to (x) the ownership, operation, or management of the Property or (y) acting as a member of a limited liability company that owns a portion of the Collateralwhich owns, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion of the Collateraloperates, or manages the Property or (Bz) acting as a member general partner of a limited partnership which owns, operates, or manages the limited liability company that owns a portion of the CollateralProperty, (iii) has not had and will not have any assets other than (x) those related to a portion of the Collateral Property or (y) its member interest in the limited liability company that owns a portion of which owns, operates, or manages the CollateralProperty or (z) its general partnership interest in the limited partnership which owns, operates, or manages the Property as applicable, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, consolidation or merger, and, except as otherwise expressly permitted by this Agreement, has not and will not engage in, seek or consent to any asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company)shareholder interests, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, has and will have as its only general partners, general partners which are and will be Special Purpose Bankruptcy Remote Entities that which are corporations, (vi) if such entity is a corporation corporation, at all relevant times, has and will have at least one Independent Director, and has not caused or allowed and will not cause or allow (vii) the board of directors of such entity to has not taken and will not take any action requiring the unanimous affirmative vote of 100% of the members of its the board of directors unless an all of the directors, including without limitation all Independent Director Directors, shall have participated in such vote, (viiviii) has not and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (ix) if such entity is a limited liability company, has and will have at least one member that is and will be a Special Purpose Bankruptcy Remote Entity that which is and will be a corporation corporation, and such corporation is and will be the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ixx) without the unanimous consent of all of its the partners, directors (including without limitation all Independent Directors) or members, as applicable, shall has not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings and will not with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interestinterest (a) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally; (Bb) dissolveseek or consent to the appointment of a receiver, liquidateliquidator, consolidateassignee, mergetrustee, sequestrator, custodian or sell any similar official for such entity or all or substantially all any portion of its assets or the assets of such entity's properties; (c) make any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and will maintain adequate capital assignment for the normal obligations reasonably foreseeable in a business benefit of its size and character and in light of its contemplated business operationssuch entity's creditors; or (d) take any action that might cause such entity to become insolvent, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returnsperson or entity, (xiiixii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xivxiii) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Personentity, (xvxiv) has held and will hold its assets in its own name, (xvixv) has conducted and will conduct its business in its name, ; (xviixvi) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Personperson or entity, (xviiixvii) has paid and will pay its own liabilities, including the salaries of its own employees, only liabilities out of its own funds and assets, (xixxviii) has observed and will observe all partnership, corporate or limited liability company formalities, formalities as applicable, (xxxix) has maintained and will maintain an arm'sarms-length relationship with its Affiliatesaffiliates, (xxixx) (a) if such entity owns the Property has and will have no indebtedness other than the Loan Debt, amounts owing under the Development Agreement, and liabilities the Management Agreement, and unsecured trade payables in the ordinary course of business relating to the ownership and operation of the CollateralProperty which (1) do not exceed, at any time, a maximum amount of one percent (1%) of the Loan and (2) are paid within ninety (90) days of the date incurred, or (b) if such entity acts as the general partner of a limited partnership which owns the Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as general partner of the limited partnership which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within ninety (90) days of the date incurred, or (c) if such entity acts as a member of a limited liability company which owns the Property has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as a member of the limited liability company which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within ninety (90) days of the date incurred, (xxiixxi) has not and will not assume or guarantee or become obligated for the debts of any other Person entity or hold out its credit as being available to satisfy the obligations of any other Person entity except for the Indebtedness and any Other Loan and the liabilities permitted made pursuant to this the Master Financing Facility Agreement, (xxiiixxii) has not acquired and will not acquire obligations or securities of its partners, members or shareholders, (xxivxxiii) has allocated and will allocate fairly and reasonably any overhead for shared expenses, including, shared office space and uses separate stationerystationary, invoices and checks, (xxvxxiv) except in connection with the Loan pursuant hereto, has not pledged and will not pledge its assets for the benefit of any other Personperson or entity, (xxvixxv) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Personperson or entity, (xxviixxvi) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Personperson or entity, (xxixxxvii) has not identified and will not identify its partners, members or shareholders, or any Affiliate affiliates of any of them, them as a division or part of it, (xxxxxviii) except as permitted by Section 2.2 if such entity is a limited liability company, such entity shall dissolve only upon the bankruptcy of the Original Loan Agreementmanaging member, by the First Amendment and by Section 2.2 hereofsuch entity's articles of organization, certificate of formation and/or operating agreement, as applicable, shall contain such provision, (xxix) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates its affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm'sarms-length transaction with an unrelated third party, (xxx) has paid and will pay the salaries of its own employees from its own funds, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness maintained and will not constitute a claim against it maintain adequate capital in the event that cash flow in excess light of the amount required to pay the Indebtedness is insufficient to pay such obligation, its contemplated business operations and (xxxii) if such entity is a corporationlimited liability company or limited partnership, it is required to consider the interests of its creditors in connection with all corporate actionsand such entity has one or more managing members or general partners, as applicable, then such entity shall continue (and not dissolve) for so long as a solvent managing member or general partner, as applicable, exists and such entity's organizational documents shall contain such provision.
Appears in 1 contract
Special Purpose Bankruptcy Remote Entity. Borrower shall continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral or (B) acting as a member of a limited liability company that owns a portion of the Collateral, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion of the Collateral, or (B) acting as a member of the limited liability company that owns a portion of the Collateral, (iii) has not had and will not have any assets other than those related to a portion of the Collateral or its member interest in the limited liability company that owns a portion of the Collateral, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Loan and liabilities in the ordinary course of business relating to the ownership of the Collateral, (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of for the Original Loan Agreement, by the First Amendment and by Section 2.2 hereofInitial Use, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of for the Original Loan Agreement, by the First Amendment and by Section 2.2 hereofInitial Use, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions.
Appears in 1 contract
Samples: Loan Agreement (Lf Strategic Realty Investors Ii L P)
Special Purpose Bankruptcy Remote Entity. Borrower shall ---------------------------------------- continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote EntitySPECIAL PURPOSE BANKRUPTCY REMOTE ENTITY" means a corporation, limited partnership or limited liability company which at all times since its formation and at all times thereafter (i) was and is organized solely for the purpose of (A) owning a portion of the Collateral its Property or Properties or (B) acting as a general partner of the limited partnership that owns its Property or Properties or member of a the limited liability company that owns a portion of the Collateralits Property or Properties, (ii) has not engaged and will not engage in any business unrelated to (A) the ownership of a portion its Property or Properties, (B) acting as general partner of the Collateral, limited partnership that owns its Property or Properties or (BC) acting as a member of the limited liability company that owns a portion of the Collateralits Property or Properties, as applicable, (iii) has not had and will not have any assets other than those related to a portion of the Collateral its Property or Properties or its partnership or member interest in the limited partnership or limited liability company that owns a portion of the Collateralits Property or Properties, as applicable, (iv) has not engaged, sought or consented to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests other than Permitted Transfers (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), unless such amendment does not otherwise contravene any term, provision or condition of any of the Loan Documents and would not result in Borrower's or the General Partner's failure to be a Special Purpose Bankruptcy Remote Entity, and provided that Borrower shall promptly -------- furnish Lender with copies of any and all such amendments (regardless of whether Lender's consent to the same is required hereunder), (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, (vi) if such entity is a corporation corporation, has at least one (1) Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of one hundred percent (100% %) of the members of its board of directors unless an Independent Director shall have participated in such vote, (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-in- interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property Property or Properties without the consent of the applicable Rating Agencies for as long as the Loan is outstanding, (ix) without the unanimous consent of all of its partners, directors or members, as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any other entity in which it has a direct or indirect legal or beneficial ownership interest, (C) engage in any other business activity, or amend its organizational documents, (x) is and will remain solvent and is maintaining and 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, (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (xii) has maintained and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, (xiii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiv) except as required by the Amended and Restated Deposit Account Agreement, has not commingled and will not commingle its funds or assets with those of any other Person, (xv) has held and will hold its assets in its own name, (xvi) has conducted and will conduct its business in its name, (xvii) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other Person, (xviii) has paid and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, (xix) has observed and will observe all partnership, corporate or limited liability company formalities, as applicable, (xx) has maintained and will maintain an arm's-length relationship with its Affiliates, (xxi) has no indebtedness other than the Loan and liabilities in the ordinary course of business relating to the ownership of the Collateral, (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan and the liabilities permitted pursuant to this Agreement, (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, (xxiv) has allocated and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, (xxv) except in connection with the Loan has not pledged and will not pledge its assets for the benefit of any other Person, (xxvi) has held itself out and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (xxvii) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made and will not make loans to any Person, (xxix) has not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, (xxx) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness is insufficient to pay such obligation, and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all corporate actions.,
Appears in 1 contract
Samples: Loan Agreement (Saul Centers Inc)
Special Purpose Bankruptcy Remote Entity. Each Borrower is and shall ---------------------------------------- continue to be a Special Purpose Bankruptcy Remote Entity. A "Special Purpose Bankruptcy Remote Entity" means a corporation, limited partnership or limited liability company which at all times since its formation on the date hereof and at all times thereafter hereafter (i) was and is organized solely for the purpose of (A) owning a portion of the its Collateral Property or (B) acting as a general partner of the limited partnership that owns a Collateral Property or member of a the limited liability company that owns a portion of the Collateral, Collateral Property; (ii) has is not engaged and will not engage in any business unrelated to (A) the ownership of a portion its Collateral Property, (B) acting as general partner of the Collateral, limited partnership that owns a Collateral Property or (BC) acting as a member of the limited liability company that owns a portion of the CollateralCollateral Property, as applicable; (iii) has does not had and will not have any assets other than those related to a portion of the its Collateral Property or its partnership or member interest in the limited partnership or limited liability company that owns a portion of the CollateralCollateral Property, as applicable; (iv) has is not engagedengaged in seeking, sought or consented consenting to and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale, transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), if such amendment would shorten the term of such entity or result in such entity not being a Special Purpose Bankruptcy Remote Entity; (v) if such entity is a limited partnership, has, as its only general partners, Special Purpose Bankruptcy Remote Entities that are corporations, ; (vi) if such entity is a corporation corporation, has at least one Independent Director, and has not caused or allowed and will not cause or allow the board of directors of such entity to take any action requiring the unanimous affirmative vote of 100% of the members of its board of directors unless an Independent Director shall have participated in such vote, ; (vii) if such entity is a limited liability company, has at least one member that is a Special Purpose Bankruptcy Remote Entity that is a corporation and such corporation is the managing member of such limited liability company, ; (viii) if such entity is a limited liability company, has articles of organization, a certificate of formation and/or an operating agreement, as applicable, providing that (A) such entity will dissolve only upon the bankruptcy of the managing member, (B) the vote of a majority-in-interest of the remaining members is sufficient to continue the life of the limited liability company in the event of such bankruptcy of the managing member and (C) if the vote of a majority-in-interest of the remaining members to continue the life of the limited liability company following the bankruptcy of the managing member is not obtained, the limited liability company may not liquidate its property a Collateral Property without the consent of the applicable Rating Agencies for as long as the Loan loan is outstanding, ; (ix) has not, and without the unanimous consent of all of its partners, directors or membersmembers (including all Independent Directors), as applicable, shall not (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings will not, with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interestinterest (A) file a bankruptcy or insolvency petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally, (B) dissolve, liquidate, consolidate, merge, or sell all or substantially all of its assets or the assets of any such other entity in which it has or otherwise seek or consent to the appointment of a direct receiver, liquidator, assignee, trustee, sequestrator, custodian or indirect legal any similar official for such entity or beneficial ownership interest, for all or any portion of such entity's properties; (C) make any assignment for the benefit of such entity's creditors; (D) take any action that is likely to cause such entity to become insolvent or (E) engage in any other business activityactivity (other than those stated in clauses (i) and (ii) above), or amend its organizational documents, ; (x) is and will remain solvent and is maintaining and 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, ; (xi) has not failed and will not fail to correct any known misunderstanding regarding the separate identity of such entity, ; (xii) has maintained does and will maintain its accounts, books and records separate from any other Person and will file its own tax returns, ; (xiii) has maintained does and will maintain its books, records, resolutions and agreements as official records, ; (xiv) except as required by the Amended and Restated Deposit Account Agreement, has does not commingled and will not commingle its funds or assets with those of any other Person, Person (other than another Borrower); (xv) has held does and will hold its assets in its own name, ; (xvi) has conducted does and will conduct its business in its name, ; (xvii) has maintained does and will maintain its financial statements, accounting records and other entity documents separate from any other Person, ; (xviii) has paid does and will pay its own liabilities, including the salaries of its own employees, only out of its own funds and assets, ; (xix) has observed does and will observe all partnership, corporate or limited liability company formalities, as applicable, ; (xx) has maintained does and will maintain an arm's-length relationship with its Affiliates, ; (xxi) (a) has no indebtedness other than the Loan Loan, Taxes, Insurance Premiums, Approved Leasing Expenses, Approved Replacement Expenses and other liabilities in the ordinary course of business relating to the ownership and operation of a Collateral Property which other liabilities (1) do not exceed, at any time, a maximum amount of one percent (1%) of the Collateraloriginal amount of its Principal and (2) are paid within sixty (60) days of the date incurred (except for amounts being disputed in good faith and for which it has made ample reserves), or (b) if such entity acts as the general partner of a limited partnership which owns the Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as general partner of the limited partnership which owns the Property which (1) do not exceed, at any time, $10,000 and (2) are paid within sixty (60) days of the date incurred, or (c) if such entity acts as a managing member of a limited liability company which owns a Collateral Property, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as a member of the limited liability company which owns a Collateral Property which (1) do not exceed, at any time, $10,000 and (2) are paid within thirty (30) days of the date incurred; (xxii) has not and will not assume or guarantee or become obligated for the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person except for the Loan and the liabilities permitted pursuant to this Agreement, ; (xxiii) has not and will not acquire obligations or securities of its partners, members or shareholders, ; (xxiv) has allocated does and will allocate fairly and reasonably any overhead for shared office space and uses separate stationery, invoices and checks, ; (xxv) except in connection with the Loan and except for Permitted Encumbrances, has not pledged and will not pledge its assets for the benefit of any other Person, ; (xxvi) has held does hold itself out and identified identify itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, ; (xxvii) has maintained does maintain and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person, ; (xxviii) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has not made holds no loans and will not make loans to any Person, ; (xxix) has does not identified and will not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, ; (xxx) except as permitted by Section 2.2 of the Original Loan Agreement, by the First Amendment and by Section 2.2 hereof, has is not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm's-length transaction with an unrelated third party, ; (xxxi) except to the extent covered by insurance, has no obligation to indemnify its partners, officers, directors or members, as the case may be, or has such an obligation that is fully subordinated to the Indebtedness Debt and will not constitute a claim against it in the event that cash flow in excess of the amount required to pay the Indebtedness Debt is insufficient to pay such obligation, ; and (xxxii) if such entity is a corporation, it is required to consider the interests of its creditors in connection with all the corporate actionsactions referred to in clause (ix) above.
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