Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action. (b) To the fullest extent permitted by law and notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust (except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall: (i) do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a Delaware statutory trust in good standing and its rights (charter and statutory) under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a party, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware; (ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of Trust, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 6.08 or Article VII hereof; (iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust; (iv) act solely in its own name and through an Authorized Officer or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence; (v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, this Trust Agreement and any other agreement to which the Trust is a party; (vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets; (vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person; (viii) segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are required under the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust; (ix) prepare and maintain annual and quarterly financial statements separate from any other Person, pay or bear out of its own funds the cost of preparation of its own financial statements and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles; (x) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder; (xi) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement; (xii) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessor; (xiii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person; (xiv) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations; (xv) pay from its own funds any compensation due to the Administrator; (xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses; (xvii) allocate fairly and reasonably between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space; (xviii) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates; (xix) not permit any Certificateholder or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement; (xx) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person; (xxi) use stationery, invoices and checks that are separate from those of any other Person; (xxii) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations; (xxiii) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person; (xxiv) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person; (xxv) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person; (xxvi) not form or acquire any subsidiary; (xxvii) not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates; (xxviii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust); (xxix) not engage, directly or indirectly, in any business other than as required or permitted under Section 2.05 hereof; (xxx) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents; (xxxi) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or their respective affiliates; (xxxii) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof; (xxxiii) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investor" within the meaning set forth in 29 C.F.R. ss. 2510.3-101(f)(2); (xxxiv) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof; (xxxv) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code; (xxxvi) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up or transfer the ownership of substantially all of its assets; (xxxvii) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person; (xxxviii) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person; and (xxxix) cause any agents and other representatives of the Trust to act at all times with respect to the Trust in furtherance of the foregoing. (c) None of the Trust, a Certificateholder, the Administrator or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit or make loans, payments or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 4 contracts
Samples: Trust Agreement (Nelnet Student Loan Trust 2008-3), Trust Agreement (Nelnet Student Loan Trust 2008-2), Trust Agreement (Nelnet Student Loan Trust 2008-4)
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding Notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust and notwithstanding any prior termination of this Trust Agreement and to the fullest extent permitted by law, the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve maintain its valid existence, rights and keep in full force and effect its existence as a Delaware statutory trust franchises in good standing and its rights (charter and statutory) as a statutory trust under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a partyTransaction Documents, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of TrustStatutory Trust Certificate, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 5.06, 6.08 or Article VII hereofof this Trust Agreement;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an its Authorized Officer Officers or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, law and this Trust Agreement and any other agreement to which the Trust is a partyAgreement;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) Person and segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are otherwise required under by the terms of the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, number in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets those of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ixviii) prepare and maintain annual and quarterly financial statements separate from any other Person, Person and pay or bear out of its own funds the cost of preparation of its own financial statements by an independent registered public accounting firm, if any, and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(xix) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to pay creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xix) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xiixi) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessorrental;
(xiiixii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xivxiii) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xvxiv) pay compensate from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xviixv) allocate fairly and reasonably allocate between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviiixvi) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xixxvii) not permit any Certificateholder (excluding the Administrator acting pursuant to the Administration Agreement) or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xxxviii) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxixix) use stationery, stationery and invoices and checks that are separate from those of any other Person;
(xxiixx) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiiixxi) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxivxxii) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxvxxiii) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not Person or form or acquire any subsidiary;
(xxviixxiv) except for its obligations under the Indenture, trade payables incurred in the ordinary course of its business that are in amounts that are customary and reasonable under the circumstances, are not evidenced by a promissory note, and are paid when due (but in no event for more than sixty (60) days from the date that such indebtedness or liabilities are incurred, unless contested in good faith), not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates);
(xxviiixxv) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxixxxvi) not engage, directly or indirectly, in any business other than as the actions required or permitted to be performed under Section 2.05 hereof;
(xxxxxvii) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxixxviii) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or and their respective affiliates;
(xxxiixxix) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiiixxx) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investorinvestors" within the meaning set forth in of 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxivxxxi) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxvxxxii) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Codefor federal income tax purposes;
(xxxvixxxiii) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up liquidate or transfer the ownership of substantially all of its assets;
(xxxviixxxiv) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviiixxxv) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person;
(xxxvi) subject to Section 5.06 hereof, not take any Bankruptcy Action; and
(xxxixxxxvii) cause any agents and other representatives representative of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit credit, make loans or make loans, payments payment or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) or assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 3 contracts
Samples: Trust Agreement (Nelnet Student Loan Funding LLC), Trust Agreement (Nelnet Student Loan Trust 2005-3), Trust Agreement (Nelnet Student Loan Trust 2005-4)
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding Notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust and notwithstanding any prior termination of this Trust Agreement and to the fullest extent permitted by law, the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve maintain its valid existence, rights and keep in full force and effect its existence as a Delaware statutory trust franchises in good standing and its rights (charter and statutory) as a statutory trust under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a partyTransaction Documents, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of TrustStatutory Trust Certificate, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 5.06, 6.08 or Article VII hereofof this Trust Agreement;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an its Authorized Officer Officers or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, law and this Trust Agreement and any other agreement to which the Trust is a partyAgreement;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) Person and segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are otherwise required under by the terms of the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, number in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets those of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ixviii) prepare and maintain annual and quarterly financial statements separate from any other Person, Person and pay or bear out of its own funds the cost of preparation of its own financial statements by an independent registered public accounting firm, if any, and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(xix) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to pay creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xix) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xiixi) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessorrental;
(xiiixii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xivxiii) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xvxiv) pay compensate from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xviixv) allocate fairly and reasonably allocate between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviiixvi) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xixxvii) not permit any Certificateholder (excluding the Administrator acting pursuant to the Administration Agreement) or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xxxviii) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxixix) use stationery, stationery and invoices and checks that are separate from those of any other Person;
(xxiixx) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiiixxi) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxivxxii) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxvxxiii) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not Person or form or acquire any subsidiary;
(xxviixxiv) except for its obligations under the Indenture, trade payables incurred in the ordinary course of its business that are in amounts that are customary and reasonable under the circumstances, are not evidenced by a promissory note, and are paid when due (but in no event for more than sixty (60) days from the date that such indebtedness or liabilities are incurred, unless contested in good faith), not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates);
(xxviiixxv) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxixxxvi) not engage, directly or indirectly, in any business other than as the actions required or permitted to be performed under Section 2.05 hereof;
(xxxxxvii) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxixxviii) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or and their respective affiliates;
(xxxiixxix) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiiixxx) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investorinvestors" within the meaning set forth in of 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxivxxxi) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxvxxxii) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Codefor federal income tax purposes;
(xxxvixxxiii) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up liquidate or transfer the ownership of substantially all of its assets;
(xxxviixxxiv) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviiixxxv) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person;
(xxxvi) subject to Section 5.06 hereof, not take any Bankruptcy Action; and
(xxxixxxxvii) cause any agents and other representatives representative of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit credit, make loans or make loans, payments payment or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) or assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 3 contracts
Samples: Trust Agreement (Nelnet Student Loan Trust 2006-2), Trust Agreement (Nelnet Student Loan Trust 2006-3), Trust Agreement (Nelnet Student Loan Trust 2006-1)
Covenants Regarding Operations. (a) Subject to Section 5.06 4.03 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Trustee, the Administrator or the Certificateholders EDC Holder shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust (except as otherwise provided in the Indenture Agreement and the Transaction Documents), and so 99724359 Nelnet-RBC Amended and Restated Trust Agreement long as the Indenture Agreement is in effect, each Certificateholder the EDC Holder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a Delaware statutory trust in good standing and its rights (charter and statutory) under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a party, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of Trust, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) this Section or Sections 2.052.03, 2.092.10, 5.03, 5.06 or 6.08 4.03 or Article VII hereofVIII hereof without the prior written consent of the Administrative Agent;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an Authorized Officer or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's ’s name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's ’s actions as may be required by applicable law, this Trust Agreement and any other agreement to which the Trust is a party;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the 99724359 Nelnet-RBC Amended and Restated Trust Agreement Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's ’s or the Indenture Trustee's ’s standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are required under the Indenture this Agreement to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunderhereunder) and with its own tax identification number, if any, in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ix) prepare and maintain annual and quarterly (or more frequent) financial statements separate from any other Person, pay or bear out of its own funds the cost of preparation of its own financial statements and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(x) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder the EDC Holder or any affiliate Affiliate of a Certificateholder the EDC Holder with those of the Trust, to state that the assets of the Trust are or will be available to creditors of any of its affiliatesAffiliates, any Certificateholder the EDC Holder or any affiliate Affiliate of a Certificateholderthe EDC Holder;
(xi) maintain an arm's-length arm’s‑length relationship with its affiliatesAffiliates, the Administrator and the Certificateholders EDC Holder and their respective affiliatesAffiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliatesAffiliates, the Administrator or any Certificateholder the EDC Holder or their respective affiliates Affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length arm’s‑length basis with third partiesthird‑parties, and transact all business with its affiliatesAffiliates, the Administrator, the Certificateholders EDC Holder and their respective affiliates Affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xii) to the extent that the Trust leases premises from any Certificateholder the EDC Holder or its affiliatesAffiliates, pay appropriate, fair and reasonable compensation or rental to the lessor;; 99724359 Nelnet-RBC Amended and Restated Trust Agreement
(xiii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xiv) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xv) pay from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xvii) allocate fairly and reasonably between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviii) not act as an agent of any Certificateholderthe EDC Holder, the Delaware Trustee, the Trustee or their respective affiliatesAffiliates;
(xix) not permit any Certificateholder the Administrator, the EDC Holder or its their respective affiliates Affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement and the Administration Agreement;
(xx) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxi) use stationery, invoices and checks that are separate from those of any other Person;
(xxii) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiii) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxiv) not pledge any property or assets of the Trust (except as permitted by the IndentureTransaction Documents), lend or advance any moneys to (other than trade receivables in 99724359 Nelnet-RBC Amended and Restated Trust Agreement connection with the ordinary course of the Trust's ’s business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxv) except for investments expressly permitted by the Indenturethis Agreement, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not form or acquire any subsidiary;
(xxvii) not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the IndentureTransaction Documents, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder the EDC Holder or its affiliatesAffiliates;
(xxviii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's ’s size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder the EDC Holder to make contributions to the Trust);
(xxix) not engage, directly or indirectly, in any business other than as required or permitted under Section 2.05 2.03 hereof;
(xxx) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture Agreement or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxi) properly account in the Trust's ’s books and financial records for any transactions entered into between the Trust and any Certificateholderthe EDC Holder, the Administrator or their respective affiliatesAffiliates;
(xxxii) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 2.03 hereof;
(xxxiii) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "“employee benefit plan" ” as defined in 99724359 Nelnet-RBC Amended and Restated Trust Agreement Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "“governmental plan" ” within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "“benefit plan investor" ” within the meaning set forth in 29 C.F.R. ss. 2510.3-101(f)(2§ 2510.3‑101(f)(2);
(xxxiv) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 2.03 hereof;
(xxxv) except as expressly provided in the IndentureAgreement, not knowingly perform any act that would subject (A) any Certificateholder the EDC Holder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code;
(xxxvi) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up wind‑up or transfer the ownership of substantially all of its assets;
(xxxvii) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviii) not permit the Trust to be maintained or used to abuse creditors or to perpetuate perpetrate a fraud, injury or injustice to creditors of any Person; and
(xxxix) cause any agents and other representatives of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.. Notwithstanding any provision of this Agreement to the contrary, the Trust has full power and authority and is specifically authorized to execute, deliver and perform (and the Trustee, on behalf of the Trust, is hereby authorized to execute and deliver) the Trust Documents and all documents, agreements, certificates, financing statements and other writings, contemplated thereby or related thereto, all without any further act, vote, consent or approval of the Delaware Trustee, the EDC Holder or other Person whatsoever. The foregoing authorization shall not be deemed to conflict with or violate any restriction contained elsewhere in this Agreement on the powers of the Trust or the Trustee on behalf of the Trust to enter into any agreements or transactions. 99724359 Nelnet-RBC Amended and Restated Trust Agreement
(c) None of the Trust, a Certificateholderthe Depositor, the EDC Holder, the Administrator or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder EDC Holder under Sections 5.03 3.03(f), 7.01(d), 7.01(i) and 6.08 8.04 hereof and Article VII hereofunder the other Transaction Documents), pursuant to which any Certificateholder the EDC Holder or any of its affiliates Affiliates agrees to (i) extend credit or make loans, payments or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 1 contract
Samples: Trust Agreement (Nelnet Inc)
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust (except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a Delaware statutory trust in good standing and its rights (charter and statutory) under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a party, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of Trust, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 6.08 or Article VII hereof;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an Authorized Officer or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's ’s name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's ’s actions as may be required by applicable law, this Trust Agreement and any other agreement to which the Trust is a party;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's ’s or the Indenture Trustee's ’s standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are required under the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ix) prepare and maintain annual and quarterly financial statements separate from any other Person, pay or bear out of its own funds the cost of preparation of its own financial statements and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(x) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xi) maintain an arm'sarm’s-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm'sarm’s-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xii) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessor;
(xiii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xiv) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xv) pay from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xvii) allocate fairly and reasonably between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviii) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xix) not permit any Certificateholder or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xx) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxi) use stationery, invoices and checks that are separate from those of any other Person;
(xxii) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiii) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxiv) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's ’s business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxv) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not form or acquire any subsidiary;
(xxvii) not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates;
(xxviii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's ’s size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxix) not engage, directly or indirectly, in any business other than as required or permitted under Section 2.05 hereof;
(xxx) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxi) properly account in the Trust's ’s books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or their respective affiliates;
(xxxii) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiii) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "“employee benefit plan" ” as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "“governmental plan" ” within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "“benefit plan investor" ” within the meaning set forth in 29 C.F.R. ss. § 2510.3-101(f)(2);
(xxxiv) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxv) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code;
(xxxvi) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up or transfer the ownership of substantially all of its assets;
(xxxvii) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviii) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person; and
(xxxix) cause any agents and other representatives of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit or make loans, payments or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 1 contract
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding Notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust and notwithstanding any prior termination of this Trust Agreement and to the fullest extent permitted by law, the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve maintain its valid existence, rights and keep in full force and effect its existence as a Delaware statutory trust franchises in good standing and its rights (charter and statutory) as a statutory trust under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a partyTransaction Documents, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of TrustStatutory Trust Certificate, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 5.06, 6.08 or Article VII hereofof this Trust Agreement;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an its Authorized Officer Officers or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's ’s name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's ’s actions as may be required by applicable law, law and this Trust Agreement and any other agreement to which the Trust is a partyAgreement;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's ’s standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) Person and segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are otherwise required under by the terms of the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, number in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets those of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ixviii) prepare and maintain annual and quarterly financial statements separate from any other Person, Person and pay or bear out of its own funds the cost of preparation of its own financial statements by an independent registered public accounting firm, if any, and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(xix) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to pay creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xix) maintain an arm'sarm’s-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm'sarm’s-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xiixi) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessorrental;
(xiiixii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xivxiii) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xvxiv) pay compensate from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xviixv) allocate fairly and reasonably allocate between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviiixvi) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xixxvii) not permit any Certificateholder (excluding the Administrator acting pursuant to the Administration Agreement) or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xxxviii) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxixix) use stationery, stationery and invoices and checks that are separate from those of any other Person;
(xxiixx) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiiixxi) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxivxxii) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's ’s business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxvxxiii) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not Person or form or acquire any subsidiary;
(xxviixxiv) except for its obligations under the Indenture, trade payables incurred in the ordinary course of its business that are in amounts that are customary and reasonable under the circumstances, are not evidenced by a promissory note, and are paid when due (but in no event for more than sixty (60) days from the date that such indebtedness or liabilities are incurred, unless contested in good faith), not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates);
(xxviiixxv) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's ’s size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxixxxvi) not engage, directly or indirectly, in any business other than as the actions required or permitted to be performed under Section 2.05 hereof;
(xxxxxvii) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxixxviii) properly account in the Trust's ’s books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or and their respective affiliates;
(xxxiixxix) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiiixxx) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "“employee benefit plan" ” as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "“governmental plan" ” within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "“benefit plan investor" investors” within the meaning set forth in of 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxivxxxi) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxvxxxii) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Codefor federal income tax purposes;
(xxxvixxxiii) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up liquidate or transfer the ownership of substantially all of its assets;
(xxxviixxxiv) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviiixxxv) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person;
(xxxvi) subject to Section 5.06 hereof, not take any Bankruptcy Action; and
(xxxixxxxvii) cause any agents and other representatives representative of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit credit, make loans or make loans, payments payment or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) or assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 1 contract
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding Notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust and notwithstanding any prior termination of this Trust Agreement and to the fullest extent permitted by law, the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve maintain its valid existence, rights and keep in full force and effect its existence as a Delaware statutory trust franchises in good standing and its rights (charter and statutory) as a statutory trust under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a partyTransaction Documents, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of TrustStatutory Trust Certificate, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 5.06, 6.08 or Article VII hereofof this Trust Agreement;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an its Authorized Officer Officers or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, law and this Trust Agreement and any other agreement to which the Trust is a partyAgreement;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) Person and segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are otherwise required under by the terms of the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, number in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets those of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ixviii) prepare and maintain annual and quarterly financial statements separate from any other Person, Person and pay or bear out of its own funds the cost of preparation of its own financial statements by an independent registered public accounting firm, if any, and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(xix) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to pay creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xix) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xiixi) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessorrental;
(xiiixii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xivxiii) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xvxiv) pay compensate from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xviixv) allocate fairly and reasonably allocate between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviiixvi) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xixxvii) not permit any Certificateholder (excluding the Administrator acting pursuant to the Administration Agreement) or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xxxviii) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxixix) use stationery, invoices invoices, telephone numbers and checks that are separate from those of any other Person;
(xxiixx) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiiixxi) not be, become or hold itself out (or permit itself to be held out) out as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxivxxii) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxvxxiii) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not Person or form or acquire any subsidiary;
(xxviixxiv) except for its obligations under the Indenture, trade payables incurred in the ordinary course of its business that are in amounts that are customary and reasonable under the circumstances, are not evidenced by a promissory note, and are paid when due (but in no event for more than sixty (60) days from the date that such indebtedness or liabilities are incurred, unless contested in good faith), not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates);
(xxviiixxv) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxixxxvi) not engage, directly or indirectly, in any business other than as the actions required or permitted to be performed under Section 2.05 hereof;
(xxxxxvii) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxixxviii) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or and their respective affiliates;
(xxxiixxix) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiiixxx) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investorinvestors" within the meaning set forth in of 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxivxxxi) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxvxxxii) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Codefor federal income tax purposes;
(xxxvixxxiii) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up liquidate or transfer the ownership of substantially all of its assets;
(xxxviixxxiv) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviiixxxv) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person;
(xxxvi) subject to Section 5.06 hereof, not take any Bankruptcy Action; and
(xxxixxxxvii) cause any agents and other representatives representative of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit credit, make loans or make loans, payments payment or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) or assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 1 contract
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, law none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust (except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a Delaware statutory trust in good standing and its rights (charter and statutory) under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a party, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of Trust, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 6.08 or Article VII hereof;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an Authorized Officer or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, this Trust Agreement and any other agreement to which the Trust is a party;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are required under the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ix) prepare and maintain annual and quarterly financial statements separate from any other Person, pay or bear out of its own funds the cost of preparation of its own financial statements and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(x) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xi) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xii) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessor;
(xiii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xiv) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xv) pay from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xvii) allocate fairly and reasonably between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviii) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xix) not permit any Certificateholder or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xx) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxi) use stationery, invoices and checks that are separate from those of any other Person;
(xxii) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiii) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxiv) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxv) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not form or acquire any subsidiary;
(xxvii) not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates;
(xxviii) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxix) not engage, directly or indirectly, in any business other than as required or permitted under Section 2.05 hereof;
(xxx) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxi) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or their respective affiliates;
(xxxii) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiii) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investor" within the meaning set forth in 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxiv) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxv) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code;
(xxxvi) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up or transfer the ownership of substantially all of its assets;
(xxxvii) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviii) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person; and
(xxxix) cause any agents and other representatives of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a CertificateholderCertificateholder , the Administrator or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit or make loans, payments or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
Appears in 1 contract
Covenants Regarding Operations. (a) Subject to Section 5.06 hereof, and notwithstanding any prior termination of this Trust Agreement, to the fullest extent permitted by law, none of the Delaware Trustee, the Administrator or the Certificateholders shall take or authorize any Bankruptcy Action.
(b) To the fullest extent permitted by law and notwithstanding Notwithstanding any other provision to the contrary in this Trust Agreement or any other agreement, document or instrument executed by the Trust and notwithstanding any prior termination of this Trust Agreement and to the fullest extent permitted by law, the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise provided in the Indenture and the Transaction Documents), and so long as the Indenture is in effect, each Certificateholder and the Administrator shall cause the Trust to, and the Trust shall:
(i) do or cause to be done all things necessary to preserve maintain its valid existence, rights and keep in full force and effect its existence as a Delaware statutory trust franchises in good standing and its rights (charter and statutory) as a statutory trust under the laws of the State of Delaware, preserve and keep in full force and effect its existence, rights and franchises, obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and any agreement to which the Trust is a partyTransaction Documents, and observe all applicable procedures and provisions required by this Trust Agreement and the laws of the State of Delaware;
(ii) except as required by law, not amend, alter, waive, change or repeal (A) its Certificate of TrustStatutory Trust Certificate, (B) the definitions in this Trust Agreement of the capitalized terms used in this Section or any of the definitions of the terms that form any part thereof or (C) Sections 2.05, 2.09, 5.03, 5.06 or 5.06, 6.08 or Article VII hereofof this Trust Agreement;
(iii) maintain its own bank accounts and correct and complete financial and other entity records, accounts and books of account separate and distinct from those of any other Person; , not commingle its records, accounts, books of account and bank accounts with the organizational or other records, accounts, books of account or bank accounts of any other Person and cause such records, accounts, books of account and bank accounts to reflect the separate existence of the Trust;
(iv) act solely in its own name and through an its Authorized Officer Officers or its agents in the conduct of its business, prepare all Trust correspondence in the Trust's name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any misunderstanding regarding its separate identity known to the Trust, refrain from engaging in any activity that compromises the separate legal identity of the Trust, and strictly comply with all organizational and statutory formalities to maintain its separate existence;
(v) take such actions as may be necessary to authorize each of the Trust's actions as may be required by applicable law, law and this Trust Agreement and any other agreement to which the Trust is a partyAgreement;
(vi) at any time that the Trust is not treated as a disregarded entity or part of a consolidated group filing consolidated returns for federal income tax purposes, file or cause to be filed its own tax and information returns, if any, as may be required of the Trust under applicable federal, state and local law, and pay any taxes out of its own funds so required to be paid under applicable law from its own assets;
(vii) except for the Delaware Trustee's or the Indenture Trustee's standard practice regarding maintenance of funds and assets, not commingle its funds or assets with funds or assets of any other Person;
(viii) Person and segregate and separately maintain (or cause to be maintained) its funds and assets as identifiable funds and assets held in its name (except with respect to holding funds or assets in its name, to the extent that such funds or assets are otherwise required under by the terms of the Indenture to be held in an account in the name of a servicer, custodian or trustee with respect to any accounts established thereunder) and with its own tax identification number, if any, number in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual funds or assets from the funds or assets those of any other Person, which funds and assets shall at all times be held by or on behalf of the Trust and used only for the business of the Trust;
(ixviii) prepare and maintain annual and quarterly financial statements separate from any other Person, Person and pay or bear out of its own funds the cost of preparation of its own financial statements by an independent registered public accounting firm, if any, and disclose in the annual financial statements of the Trust the effects of its transactions in accordance with generally accepted accounting principles;
(xix) not permit the financial statements of the Trust, or any consolidated or combined financial statements which consolidate or combine the assets and earnings of any Certificateholder or any affiliate of a Certificateholder with those of the Trust, to state that the assets of the Trust are or will be available to pay creditors of any of its affiliates, any Certificateholder or any affiliate of a Certificateholder;
(xix) maintain an arm's-length relationship with its affiliates, the Administrator and the Certificateholders and their respective affiliates, not enter into any contract or agreement or any amendment thereof with any of its affiliates, the Administrator or any Certificateholder or their respective affiliates unless the terms thereof are commercially reasonable, and substantially similar to those that would be available on an arm's-length basis with third parties, and transact all business with its affiliates, the Administrator, the Certificateholders and their respective affiliates pursuant to enforceable agreements with material terms established at the inception that will not be amendable except with the consent of each of the parties to such agreement;
(xiixi) to the extent that the Trust leases premises from any Certificateholder or its affiliates, pay appropriate, fair and reasonable compensation or rental to the lessorrental;
(xiiixii) be directly responsible for the costs of its own outside legal, auditing and other similar services and pay its taxes, liabilities and operating expenses only out of its funds and not pay from its assets any obligations or indebtedness of any other Person;
(xivxiii) pay from its own funds the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(xvxiv) pay compensate from its own funds any compensation due to the Administrator;
(xvi) pay compensation from its own funds to independent contractors for performing services or incurring expenses in connection with such services for the Trust in an amount equal to the fair value of such services and expenses;
(xviixv) allocate fairly and reasonably allocate between the Trust and any other Person pursuant to a written agreement all expenses that are shared with such Person, including any overhead, rent, or other compensation paid for shared or leased office space;
(xviiixvi) not act as an agent of any Certificateholder, the Delaware Trustee or their respective affiliates;
(xixxvii) not permit any Certificateholder (excluding the Administrator acting pursuant to the Administration Agreement) or its respective affiliates to act as an agent for the Trust, except as specifically permitted by this Trust Agreement;
(xxxviii) not identify itself as a department or division of any other Person in order not (A) to mislead others as to the identity of the entity with which such other party is transacting business or (B) to suggest that the Trust is responsible for the debts of any other Person;
(xxixix) use stationery, invoices invoices, telephone numbers and checks that are separate from those of any other Person;
(xxiixx) not enter into leases for office space, except as necessary to maintain a principal place of business or the conduct of its operations;
(xxiiixxi) not be, become or hold itself out (or permit itself to be held out) as being liable for the debts or other obligations of any other Person, or hold out its credit (or permit its credit to be held out) as being available to satisfy the obligation of any other Person;
(xxivxxii) not pledge any property or assets of the Trust (except as permitted by the Indenture), lend or advance any moneys to (other than trade receivables in connection with the ordinary course of the Trust's business), or guarantee (directly or indirectly), endorse (other than the endorsement of negotiable instruments for collection or deposit in the ordinary course of business) or otherwise become contingently liable (directly or indirectly) for the obligations of, or acquire or assume any obligation or liability of, any other Person;
(xxvxxiii) except for investments expressly permitted by the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person;
(xxvi) not Person or form or acquire any subsidiary;
(xxviixxiv) except for its obligations under the Indenture, trade payables incurred in the ordinary course of its business that are in amounts that are customary and reasonable under the circumstances, are not evidenced by a promissory note, and are paid when due (but in no event for more than sixty (60) days from the date that such indebtedness or liabilities are incurred, unless contested in good faith), not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation) other than its obligations under the Indenture, unsecured debts and liabilities for trade payables and accrued expenses and taxes incurred in the ordinary course of its business that (A) are in amounts that are normal and reasonable under the circumstances, (B) are not evidenced by a promissory note, (C) are paid when due (unless being contested in good faith) and (D) not owed to a Certificateholder or its affiliates);
(xxviiixxv) maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and character and in light of its proposed business operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to make contributions to the Trust);
(xxixxxvi) not engage, directly or indirectly, in any business other than as the actions required or permitted to be performed under Section 2.05 hereof;
(xxxxxvii) not acquire or own any material assets other than the assets and properties to be pledged under the Indenture or as otherwise are necessary to comply with its obligations under the Transaction Documents;
(xxxixxviii) properly account in the Trust's books and financial records for any transactions entered into between the Trust and any Certificateholder, the Administrator or and their respective affiliates;
(xxxiixxix) not enter into any contract, except such contracts as necessary to enable the Trust to achieve its purposes as set forth in, or that are otherwise required or permitted by, Section 2.05 hereof;
(xxxiiixxx) not agree to, enter into or consummate any transaction which would render it unable to confirm that (A) it is not an "employee benefit plan" as defined in Section 3(32) of ERISA, which is subject to Title I of ERISA, or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B) it is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; and (C) less than 25% of each of its outstanding classes of equity interests are held by a "benefit plan investorinvestors" within the meaning set forth in of 29 C.F.R. ss. 2510.3-101(f)(2);
(xxxivxxxi) to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Section, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.05 hereof;
(xxxvxxxii) except as expressly provided in the Indenture, not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Codefor federal income tax purposes;
(xxxvixxxiii) not combine, consolidate or merge the Trust into or with any other Person, convert the Trust into an entity that is not a Delaware statutory trust, reorganize or form the Trust in a jurisdiction other than Delaware or, to the fullest extent permitted by applicable law, dissolve, liquidate, wind-up liquidate or transfer the ownership of substantially all of its assets;
(xxxviixxxiv) not enter into the Transaction Documents or any other agreement with any intent to hinder, delay or defraud creditors of any Person;
(xxxviiixxxv) not permit the Trust to be maintained or used to abuse creditors or to perpetuate a fraud, injury or injustice to creditors of any Person;
(xxxvi) subject to Section 5.06 hereof, not take any Bankruptcy Action; and
(xxxixxxxvii) cause any agents and other representatives representative of the Trust to act at all times with respect to the Trust in furtherance of the foregoing.
(c) None of the Trust, a Certificateholder, the Administrator Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise (other than the obligations of the Certificateholder under Sections 5.03 and 6.08 and Article VII hereof), pursuant to which any Certificateholder or any of its affiliates agrees to (i) extend credit credit, make loans or make loans, payments payment or contributions (subject to Section 2.13 hereof) to or for the Trust, (ii) or assume, guaranty or otherwise be obligated for the payment of the obligations or the performance of the Trust, (iii) hold itself out as being liable for the obligations of the Trust or (iv) hold out its credit as being available to satisfy the obligations of the Trust.
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