Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity. (a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company to: (i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP; (ii) at all times hold itself out to the public as a legal entity separate from Member and any other Person; (iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person; (v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (vi) pay its own liabilities only out of its own funds; (vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person; (viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations; (ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person; (x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space; (xi) use separate stationery, invoices and checks; (xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and (xiii) correct any known misunderstanding regarding its separate (xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any. (b) The failure of the Company, or Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member. (c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to: (i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate; (ii) engage in any business unrelated to the Business; (iii) have any assets other than those related to the Business; (iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents; (v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions; (vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or (vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.
Appears in 3 contracts
Samples: Operating Agreement, Operating Agreement, Limited Liability Company Operating Agreement
Limitations on the Company’s Activities. This Section 2.7 2.07 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, the Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and the Member also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate Affiliate, although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from the Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it the Company may invest its funds in interest bearing accounts held by any bank that is not its Affiliate a Related Person and make advances in accordance with the Participation and Servicing Agreement; identity; and;
(xiii) correct any known misunderstanding regarding its separateseparate identity; and
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or the Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
(c) So long as the Participation and Servicing Agreement is in effect, the Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and the Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any AffiliateRelated Person;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or
(vii) except for any Ownership Entity, or as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.
Appears in 2 contracts
Samples: Operating Agreement, Operating Agreement
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the The Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, and Member also shall cause however, that the Company to:
(i) maintain financial statements separate from shall not be required to preserve any Affiliate although it may be included in such right or franchise if: the consolidated financial statements General Partner shall determine that the preservation thereof is no longer desirable for the conduct of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to business and that the public as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it loss thereof is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay disadvantageous in any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with material respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) Company. The failure of the Company, or Member on behalf of the Company, Company to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
the Partners. The Company shall, except as otherwise permitted or set forth in this Agreement (c) So long including, without limitation, as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:Major Decision):
(i) except correct any known misunderstanding regarding its separate identity and not identify itself as contemplated hereby or by the Ancillary Documents, Guarantee any obligation a division of any other Person, including any Affiliate;
(ii) engage in maintain its bank accounts, books of account, books and records separate from those of any business unrelated other Person except as required by the Loan Documents, file its own tax returns (to the Businessextent the Company is required to file any tax returns) except to the extent that it is required by law to file consolidated tax returns;
(iii) have any assets other than those related to the Businessmaintain its own records, books, resolutions and agreements;
(iv) incur, create not commingle its funds or assume assets with those of any Debt other than as expressly permitted hereby or by the Ancillary DocumentsPerson nor participate in any cash management system with any other Person;
(v) make or permit to remain outstanding any loan or advance to, or hold its assets in its own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisionsname;
(vi) conduct its business in its own name or in a name franchised or licensed to the fullest extent permitted it by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests an entity other than an Affiliate and strictly comply with all organizational formalities to maintain its separate existence, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in subsection (xxi) below, so long as the manager, or equivalent thereof, under such activities business management services agreement holds itself out as are expressly permitted pursuant to any provision an agent of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; orCompany;
(vii) (A) maintain its financial statements, accounting records and other entity documents separate from those of any other Person, (B) in its financial statements, show its assets and liabilities separate and apart from those of any other Person except as required by GAAP in connection with the preparation of consolidated financial statements, and (C) not permit its assets to be listed as assets on the financial statement of any other Person except as required by GAAP in connection with the preparation of consolidated financial statements; provided, however, that any such consolidated financial statements referenced in clause (A) or (C) above shall contain a note indicating that it is a separate entity and that its separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity;
(viii) not engage directly or indirectly in any business other than the actions required or permitted to be performed under Section 3.1 or this Section 6.11;
(ix) pay its own liabilities and expenses out of its own funds and assets;
(x) observe all limited partnership formalities, as applicable;
(xi) have no indebtedness other than the GMAC Loan;
(xii) not assume or guarantee or, become obligated for the debts of any other Person, hold out its credit as being available to satisfy the obligations of any other Person or pledge its assets for the benefit of any other Person other than in connection with development of the Property;
(xiii) not acquire obligations or securities of its Partners or any other Affiliate;
(xiv) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate;
(xv) maintain and use separate stationery, invoices and checks bearing its name. The stationery, invoices, and checks utilized to collect its funds or pay its expenses shall bear its own name and shall not bear the name of any other entity unless such entity is clearly designated as being the other entity agent;
(xvi) not pledge its assets for the benefit of any other Person other than in connection with financings of the Property;
(xvii) hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate and not as a division or part of any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in subsection (xxi) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;
(xviii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xix) not make loans to any Person or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
(xx) not identify its Partners or any Affiliate of any of them, as a division or part of it, and not identify itself as a division of any other Person;
(xxi) not enter into or be a party to, any transaction with its members, or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party (it being agreed that the Development Agreement satisfies the foregoing condition);
(xxii) not have any of its obligations guaranteed by any Affiliate except as contemplated or permitted by the Participation and Servicing Agreement, GMAC Loan;
(xxiii) not form, acquire or hold any Subsidiarysubsidiary other than Subsidiaries in connection with the development of the Property; and
(xxiv) maintain an arm’s length relationship with its Affiliates and the Partners (it being agreed that Development Agreement satisfies the foregoing condition).
Appears in 2 contracts
Samples: Limited Liability Limited Partnership Agreement, Limited Liability Limited Partnership Agreement (Strategic Hotel Capital Inc)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the The Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, and Member also shall cause however, that the Company to:
(i) maintain financial statements separate from shall not be required to preserve any Affiliate although it may be included in such right or franchise if: the consolidated financial statements General Partner shall determine that the preservation thereof is no longer desirable for the conduct of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to business and that the public as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it loss thereof is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay disadvantageous in any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with material respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) Company. The failure of the Company, or Member on behalf of the Company, Company to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
the Partners. The Company shall, except as otherwise permitted or set forth in this Agreement (c) So long including, without limitation, as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:Major Decision):
(i) correct any known misunderstanding regarding its separate identity and not identify itself as a division of any other Person;
(ii) maintain its bank accounts, books of account, books and records separate from those of any other Person except as contemplated hereby or required by the Ancillary Loan Documents, Guarantee file its own tax returns (to the extent the Company is required to file any obligation tax returns) except to the extent that it is required by law to file consolidated tax returns;
(iii) maintain its own records, books, resolutions and agreements;
(iv) not commingle its funds or assets with those of any other Person nor participate in any cash management system with any other Person;
(v) hold its assets in its own name;
(vi) conduct its business in its own name or in a name franchised or licensed to it by an entity other than an Affiliate and strictly comply with all organizational formalities to maintain its separate existence, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in subsection (xxi) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;
(vii) (A) maintain its financial statements, accounting records and other entity documents separate from those of any other Person, including (B) in its financial statements, show its assets and liabilities separate and apart from those of any other Person except as required by GAAP in connection with the preparation of consolidated financial statements, and (C) not permit its assets to be listed as assets on the financial statement of any other Person except as required by GAAP in connection with the preparation of consolidated financial statements; provided, however, that any such consolidated financial statements referenced in clause (A) or (C) above shall contain a note indicating that it is a separate entity and that its separate assets and liabilities are neither available to pay the debts of the consolidated entity nor constitute obligations of the consolidated entity;
(viii) not engage directly or indirectly in any business other than the actions required or permitted to be performed under Section 3.1 or this Section 6.11;
(ix) pay its own liabilities and expenses out of its own funds and assets;
(x) observe all limited partnership formalities, as applicable;
(xi) have no indebtedness;
(xii) not assume or guarantee or, become obligated for the debts of any other Person, hold out its credit as being available to satisfy the obligations of any other Person or pledge its assets for the benefit of any other Person other than in connection with development of the Property;
(xiii) not acquire obligations or securities of its Partners or any other Affiliate;
(xiv) allocate fairly and reasonably any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate;
(xv) maintain and use separate stationery, invoices and checks bearing its name. The stationery, invoices, and checks utilized to collect its funds or pay its expenses shall bear its own name and shall not bear the name of any other entity unless such entity is clearly designated as being the other entity agent;
(xvi) not pledge its assets for the benefit of any other Person other than in connection with financings of the Property and the Subsidiary Affiliates;
(xvii) hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate and not as a division or part of any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in subsection (xxi) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;
(xviii) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
(xix) not make loans to any Person or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
(xx) not identify its Partners or any Affiliate of any of them, as a division or part of it, and not identify itself as a division of any other Person;
(xxi) not enter into or be a party to, any transaction with its members, or Affiliates except in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party (it being agreed that the Hotel Management Agreement and the Asset Management Agreement satisfy the foregoing condition);
(xxii) not have any of its obligations guaranteed by any Affiliate;
(iixxiii) engage not form, acquire or hold any subsidiary other than the Subsidiary Affiliates or in any business unrelated to connection with the Businessdevelopment of the Property;
(iiixxiv) have any assets other than those related to maintain an arm’s length relationship with its Affiliates and the Business;Partners (it being agreed that the Hotel Management Agreement and the Asset Management Agreement satisfy the foregoing condition); and
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vixxv) to the fullest extent permitted by law, not engage in or seek to consent to any dissolution, winding up, liquidation, consolidation, merger, asset sale of all or transfer substantially all of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiaryit assets.
Appears in 2 contracts
Samples: Limited Partnership Agreement, Limited Partnership Agreement (Strategic Hotel Capital Inc)
Limitations on the Company’s Activities. This Section 2.7 2.8 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member The Manager shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member the Manager also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from Member the Manager, the Members and any other Person;
(iiiii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayerLaw, and pay any taxes so required to be paid under applicable lawLaw;
(iviii) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(viv) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(viiv) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ixvi) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xiivii) except as contemplated hereby or by the Ancillary Documentshereby, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; andAffiliate;
(xiiiviii) observe all limited liability company formalities;
(ix) correct any known misunderstanding regarding its separateseparate identity; and
(xivx) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member the Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Memberthe Members.
(c) So long as Unless approved in writing by the Participation and Servicing Agreement is in effect, Member shall not permit Members holding a Dissolution Event or an Insolvency Event to occur with respect to majority of the Company to which Units, the Participant has not provided its written consent, and Member Manager also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including including, without limitation, any AffiliateAffiliate of the Company;
(ii) except to the extent expressly permitted hereunder, enter into any transaction with any Affiliate of the Company;
(iii) engage in any business unrelated to the Businesspurpose stated in Section 2.6;
(iiiiv) have any assets other than the Parent OP Units and those related to the Businesspurpose stated in Section 2.6;
(ivv) except to the extent expressly permitted hereunder, incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary DocumentsDebt;
(vvi) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests Person other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents Parent OP Units and subject to obtaining any approvals required under this Agreement; orSecurities, if any, issuable in respect thereof;
(vii) except as contemplated to the extent expressly permitted hereunder, execute or permitted by enter into any contract or agreement, whether oral or written (other this Agreement);
(viii) hire any employee or adopt, enter into or agree to comply with any other agreement regarding the Participation and Servicing Agreementemployment of any Person;
(ix) commence, form, acquire settle or hold compromise any Subsidiary.Action; (x) issue any units or other securities of the Company other than pursuant to Section 5.1(d);
Appears in 2 contracts
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent it is (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s 's length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, allocate fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.
Appears in 2 contracts
Samples: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement
Limitations on the Company’s Activities. This Section 2.7 8(d) is being adopted in order to comply with certain provisions required in order Xxxxxx’s requirement to qualify the Company as a “special purposeSingle Purpose Entity.” entity.
(a) For Accordingly, and notwithstanding anything in this Agreement to the contrary, at all times on and after the date hereof so long as the Participation and Servicing Agreement is in effectLoan remains outstanding, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company tonot:
(i) maintain financial statements separate from engage in any Affiliate although it may be included business or activity other than to (i) acquire, own, hold, entitle, and develop the Property, and construct, renovate, manage, finance, operate, lease, dispose of and otherwise deal with the Project; (ii) enter into the Loan Agreement with Lender and perform its obligations under the Loan Documents; (iii) refinance the Property in connection with a permitted repayment of the consolidated financial statements of its parent or ultimate parent in accordance with GAAPLoan; and (iv) transact all lawful business that is incident, necessary and appropriate to accomplish the foregoing;
(ii) acquire or own any material asset other than the Property and such incidental personal property as may be necessary for the operation of the Property;
(iii) merge into or consolidate with any Person or dissolve, terminate or liquidate in whole or in part, or transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case obtaining the prior written consent of Lender;
(iv) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of Delaware, or without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed, terminate the provisions of this Agreement or the Certificate or amend this Agreement or the Certificate in a manner which would result in a breach of any of the representations, warranties or covenants set forth in this Section 8(d) or that would otherwise adversely affect the Company’s single-purpose entity status;
(v) own any subsidiary or make any investment in or acquire the obligations or securities of any other Person without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned;
(vi) commingle its assets with the assets of the Member, any Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, or of any other Person or transfer any assets to any such Person other than distributions on account of equity interests in the Company permitted hereunder and properly accounted for;
(vii) incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Indebtedness or trade payables incurred in the ordinary course of business in an amount no greater than $250,000, except as permitted under Section 8.1 of the Loan Agreement; provided that any such debt is satisfied when due and payable, subject to reasonable and customary rights to contest such obligations, and provided further that there is sufficient cash flow from the Property at such time to do so and that the Member shall not be required to fund or advance any additional capital to satisfy such obligation;
(viii) except for a payment of the Indebtedness by a guarantor or indemnitor of the Loan, (A) allow any Person to pay its debts and liabilities, or (B) fail to pay its debts and liabilities solely from its own assets, provided, with respect to the foregoing clause (B), that there is sufficient cash flow from the Property at such time to do so and that the Member shall not be required to fund or advance any additional capital to satisfy such obligation;
(ix) fail to maintain its records, books of account and bank accounts separate and apart from those of the Member and its Affiliates, or any shareholder, partner, member, principal or Affiliate thereof, and any other Person, or, if its financial statements are not consolidated, fail to prepare and maintain its own financial statements in accordance with generally accepted accounting principles or tax basis accounting and susceptible to audit, or, if such financial statements are consolidated, fail to cause such financial statements to contain footnotes disclosing that the Property is actually owned by the Company;
(x) other than otherwise expressly permitted under the terms of the Loan Agreement, enter into any contract or agreement with the Member or any Affiliate, guarantor or indemnitor of all times or a portion of the Loan or any shareholder, partner, member, principal or Affiliate thereof, except with Xxxxxx’s consent as provided in Section 5.2(c) of the Loan Agreement;
(xi) fail to correct any known misunderstandings regarding the separate identity of the Company;
(xii) hold itself out to be responsible or pledge its assets or credit worthiness for the debts of another Person or allow any Person to hold itself out to be responsible or pledge its assets or credit worthiness for the debts of the Company (except for a guarantor or indemnitor of the Loan);
(xiii) make any loans or advances to any third party (other than tenant improvements loans pursuant to the Leases), including the Member, any Affiliate, or any shareholder, partner, member, principal or Affiliate thereof;
(xiv) fail to use separate contracts, purchase orders, invoices and checks (other than such documents that bear the name of the Member with reference to the Property);
(xv) fail either to hold itself out to the public as a legal entity separate and distinct from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, Person or to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business solely in its own name and strictly comply in order not: (A) to mislead others as to the entity with all organizational formalities which such other party is transacting business; or (B) to maintain its separate existencesuggest that the Company is responsible for the debts of any third party (including the Member, any Affiliate, or any shareholder, partner, member, principal or Affiliate thereof);
(vixvi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with allow any Affiliate upon terms that are commercially reasonable and that are no less favorable other Person to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its the Company’s own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, or fail to maintain a sufficient number of employees (if any) for its contemplated business operations, provided that there is sufficient cash flow from the Property at such time to do so and that the Member shall not be required to fund or advance any additional capital to satisfy this obligation;
(xvii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations, provided that there is sufficient cash flow from the Property at such time to do so and that the Member shall not be required to fund or advance any additional capital to satisfy this obligation;
(ixxviii) not hold out its credit seek dissolution or assets as being available to satisfy the obligations of otherswinding up in whole, or Guarantee or otherwise obligate itself with respect to the Debts of any other Personin part;
(xxix) allocate, fairly and reasonably, shared expenses, including file a voluntary petition or otherwise initiate proceedings to have the Company or any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby Principal adjudicated bankrupt or by the Ancillary Documents, not pledge its assets for the benefit of any other Personinsolvent, or make consent to the institution of bankruptcy or insolvency proceedings against the Company or any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the CompanyPrincipal, or Member on behalf of the Company, file a petition seeking or consenting to comply with any of the foregoing covenants reorganization or any other covenants contained in this Agreement shall not affect the status relief of the Company or any Principal as a separate legal entity debtor under any applicable federal or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effectstate law relating to bankruptcy, Member shall not permit a Dissolution Event insolvency, or an Insolvency Event to occur other relief for debtors with respect to the Company or Principal; or seek or consent to which the Participant has not provided appointment of any trustee, receiver, conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of the Company or any Principal or of all or any substantial part of the properties and assets of the Company or any Principal (other than if at the request of Lender), or make any general assignment for the benefit of creditors of the Company or any Principal, or admit in writing the inability of the Company or any Principal to pay its written consentdebts generally as they become due (other than if at the request of Lender) or declare or effect a moratorium on the Company or any Principal debt or take any action in furtherance of any such action; or
(xx) conceal assets from any creditor, and or enter into any transaction with the intent to hinder, delay or defraud its creditors or the creditors of any other Person. The Company and/or Member also shall not cause amend or permit modify this Agreement in any manner that would result in a breach of any of the representations, warranties or covenants set forth in this Section 8(d) or that would otherwise adversely affect the Company’s special-purpose entity status without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned. Promptly after Xxxxxx’s written request from time to time, but not more frequently than once in any calendar year, the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage shall deliver to Lender evidence satisfactory to Lender in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except its reasonable discretion that the Company may invest is in those investments permitted under compliance with the Ancillary Documents provisions of this Section 8(d). Notwithstanding any other provision of this Agreement or any other document governing the formation, management, or operation of the Company, and may make notwithstanding any advance required provision of law that otherwise so empowers the Company, neither the Member nor any other Person shall be authorized or empowered, nor shall they permit the Company, to take or consent to any of the following actions except to the extent expressly permitted to be made pursuant to any provisions in the Loan Agreement and the other Loan Documents, in each case, without the prior unanimous written consent of the Ancillary Documents and permit Member, including its Independent Manager: (1) the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset or sale of all or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision substantially all of the Ancillary Documents and subject Company’s assets; (2) the filing, or consent to obtaining the filing, of a bankruptcy or insolvency petition on behalf of the Company, either voluntary or involuntary, to take advantage of any approvals required under this Agreement; or
(vii) except as contemplated applicable insolvency, bankruptcy, liquidation or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.reorganization statute;
Appears in 1 contract
Samples: Limited Liability Company Agreement
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify A. Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Company as shall not, without the prior written consent of each trustee from time to time (the “Trustees”) under the Financing Agreements (or any supplements thereto) involving a “special purpose” entity.Trust or of each Holdco, purchaser or lender so designated in any other Financing Agreement, which in either case are then in effect, nor without the affirmative vote of 100% of the Independent Directors, do any of the following (unless and to the extent that any such Financing Agreement expressly permits the Company to take such action without the consent of the related Trustee, purchaser or lender):
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Businessactivity other than those set forth in Section 2.2;
(b) incur any indebtedness, or assume or guaranty any indebtedness of any other entity, other than (i) indebtedness incurred or guaranteed in connection with the issuance of Securities; (ii) indebtedness to GMAC or any affiliate thereof incurred or guaranteed in connection with the acquisition of Receivables, which indebtedness will provide that for so long as any Securities are outstanding, such indebtedness will only be payable to the extent the Company has available cash to pay such indebtedness; and (iii) have indebtedness where the person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other person in instituting against, the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar law, that it will not look to property or assets of the Company in respect to such obligations, and that such obligations shall not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations, in each case for one year after all Securities (other than those related to Securities held by the BusinessCompany) are paid in full;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vic) to the fullest extent permitted by law, engage dissolve or liquidate, in any dissolution, liquidation, consolidation, merger, asset sale whole or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreementin part; or
(viid) except consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as contemplated an entirety to any entity, unless: (a) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company in connection with the indebtedness of the Company, and has a Certificate of Formation, limited liability company agreement, Certificate of Incorporation or other comparable organizational document containing provisions identical to the provisions of Section 2.2 and 4.9 of this Agreement; and (b) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness. Notwithstanding any other provision of this Agreement and any other provision of law that otherwise so empowers the Company, the Company shall not, and the Member, Board and officers shall not permit the Company to, without the prior unanimous written consent of the Member and the affirmative vote of the Board (including 100% of the Independent Directors), institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition seeking or consent to reorganization or relief under applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take action in furtherance of any such action. To the fullest extent permitted by law, including Section 18-1101(c) of the Participation Act, Independent Directors shall consider the interests of the Member and Servicing Agreement, form, acquire holders of the Company’s rated indebtedness in determining whether to vote for or hold any Subsidiary.against actions contemplated by Sections 4.9A(c) or (d) or 4.9B.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Capital Auto Receivables LLC)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member The Manager shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Manager shall determine that the preservation thereof is no longer desirable for the conduct of its business and Member that the loss thereof is not disadvantageous in any material respect to the Company. The Manager also shall cause the Company toto and the Company shall:
(i) maintain financial statements its own separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAPbooks, records and bank accounts;
(ii) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Loan Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) maintain separate financial statements;
(vii) pay its own liabilities only out of its own funds;
(viiviii) maintain an arm’s 's length relationship with any Affiliate upon terms that are commercially reasonable its Affiliates and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated PersonMember;
(viiiix) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ixx) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(xxi) allocate, allocate fairly and reasonably, reasonably any overhead for shared expenses, including any overhead for including, without limitation, shared office space;
(xixii) use separate stationery, invoices and checks;
(xiixiii) except as contemplated hereby or by the Ancillary Loan Documents, not guarantee or pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and;
(xiiixiv) correct any known misunderstanding regarding its separateseparate identity and not identify itself as a department or division of another Person;
(xivxv) be solvent and maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities, if any.;
(bxvi) The failure observe all Delaware limited liability company formalities;
(xvii) not acquire any obligation or securities of the Member or of any Affiliate of the Company;
(xviii) cause the Manager, or Member on behalf of the Company, to comply with any of the foregoing covenants or any agents and other covenants contained in this Agreement shall not affect the status representatives of the Company as a separate legal entity or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur act at all times with respect to the Company to which consistently and in furtherance of the Participant has not provided its written consent, foregoing and Member also shall not cause or permit in the Company to:best interests of the Company;
(ixix) not enter into or be a party to any transaction with its Affiliates except as contemplated hereby in the ordinary course of business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arm’s length transaction with an unrelated third party; and
(xx) maintain its assets in such a manner that is not costly or by the Ancillary Documents, Guarantee any obligation difficult to segregate or identify its individual assets from those of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Resource Real Estate Investors 6 LP)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as Unless and until the Participation and Servicing Agreement is Class A Member transfers its entire interest in effect, Member shall cause the Company to do an unrelated third party or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company totransfers its entire interest in BGE to an unrelated third party, the Company shall:
(i1) not commingle its funds or other assets with the funds or other assets of any other Person, and not maintain financial statements separate any funds or other assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual funds or other assets from any Affiliate although it may be included in the consolidated financial statements those of its parent Members or ultimate parent in accordance with GAAPany other Person;
(ii2) at all times hold itself out to the public and all other Persons as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v3) conduct its business in its own name through its duly authorized Directors and strictly Officers and comply with all organizational formalities to maintain its separate existence;
(vi4) pay its own liabilities only out not use the trademarks, service marks or other intellectual property of any of its own fundsAffiliates;
(vii5) maintain its own separate books, records, bank accounts and financial statements reflecting its separate assets and liabilities;
(6) maintain an arm’s arm’s-length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Personeach of its Affiliates;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv7) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Members to make any additional capital contributions to the Company;
(8) comply with GAAP in all material respects (subject, in the case of unaudited financial statements, to the absence of footnotes and to normal year-end audit adjustments) in all financial statements and reports required of it and issue such financial statements and reports separately from any financial statements or reports prepared for its Members and Affiliates; provided that such financial statements or reports may be consolidated with those of its Affiliates if anythe separate existence of the Company and its assets and liabilities are clearly noted therein;
(9) account for and manage all of its liabilities separately from any other Person, and pay its own liabilities only out of its own funds;
(10) neither guarantee nor become obligated for the debts of any other Person nor hold out its credit or assets as being available to satisfy the obligations of any other Person;
(11) use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity;
(12) ensure that title to all real and personal property acquired by it be acquired, held and conveyed in its name;
(13) observe all necessary, appropriate and customary company formalities in its dealings with its members and Affiliates;
(14) make all decisions with respect to its business and daily operations independently, although its Operating Directors and Officers making any particular decision may also be employees, officers, directors or managers of the Class A Member, its members or its Affiliates;
(15) ensure that its funds will not be transferred to the Class A Member or its Affiliates except with the consent and authority of the Board;
(16) not acquire, assume or guarantee obligations of any Affiliate;
(17) not pledge its assets for the benefit of any other Person or make loans to, or purchase or hold any indebtedness of, any other Person; and
(18) cause its Directors, Officers and its other representatives to act, in their reasonable discretion, at all times with respect to, consistently with, and in furtherance of, the foregoing.
(b) The failure Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Members, the Board, any Director, any Officer or Member any other Person, neither the Members nor the Board nor any Director nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without (i) the unanimous prior approval of the Board, including the Independent Director and (ii) the prior written consent of the Class B Member, to (A) commence any case, proceeding or other action on behalf of the Company under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief for debtors; (B) institute proceedings to have the Company adjudicated as bankrupt or insolvent; (C) consent to or acquiesce in the institution of bankruptcy or insolvency proceedings against the Company; (D) file a petition or consent to a petition seeking reorganization, to comply with any of the foregoing covenants arrangement, adjustment, winding-up, dissolution, composition, liquidation, or any other covenants contained in this Agreement shall not affect the status relief on behalf of the Company of its debts under any federal or state law relating to bankruptcy; (E) apply for, or consent to, or acquiesce in the appointment of, a receiver, liquidator, sequestrator, trustee or other officer with similar powers of such Person with respect to the Company; (F) make any assignment for the benefit of the Company’s creditors; (G) admit in writing the Company’s inability to pay its debts generally as a separate legal entity they become due; (H) modify the provisions of Section 5.1(a); or (I) remove the limited liability of Memberunanimous consent requirement set forth above in this Section 5.1(b).
(c) So long as As used in this Section 5.1, “GAAP” means generally accepted accounting principles set forth in the Participation opinions and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions pronouncements of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision Accounting Principles Board of the Ancillary Documents American Institute of Certified Public Accountants and subject statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to obtaining any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiarytime.
Appears in 1 contract
Samples: Operating Agreement (Constellation Energy Group Inc)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify A. Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Company as shall not, without the prior written consent of each trustee from time to time (the “Trustees”) under the Financing Agreements (or any supplements thereto) involving a “special purpose” entity.Trust or of each purchaser or lender so designated in any other Financing Agreement, which in either case are then in effect, nor without the affirmative vote of 100% of the Independent Directors, do any of the following (unless and to the extent that any such Financing Agreement expressly permits the Company to take such action without the consent of the related Trustee, purchaser or lender):
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from Member and any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Businessactivity other than those set forth in Section 2.2;
(b) incur any indebtedness, or assume or guaranty any indebtedness of any other entity, other than (i) indebtedness incurred or guaranteed in connection with the issuance of Securities; (ii) indebtedness to GMAC or any affiliate thereof incurred or guaranteed in connection with the acquisition of Receivables, which indebtedness will provide that for so long as any Securities are outstanding, such indebtedness will only be payable to the extent the Company has available cash to pay such indebtedness; and (iii) have indebtedness where the person to whom the indebtedness is owing has delivered to the Company an undertaking that it will not institute against, or join any other person in instituting against, the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any federal or state bankruptcy or similar law, that it will not look to property or assets of the Company in respect to such obligations, and that such obligations shall not constitute a claim against the Company in the event that the Company’s assets are insufficient to pay in full such obligations, in each case for one year after all Securities (other than those related to Securities held by the BusinessCompany) are paid in full;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vic) to the fullest extent permitted by law, engage dissolve or liquidate, in any dissolution, liquidation, consolidation, merger, asset sale whole or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreementin part; or
(viid) except consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as contemplated an entirety to any entity, unless: (a) the entity (if other than the Company) formed or surviving the consolidation or merger or which acquires the properties and assets of the Company is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of, and all obligations of the Company in connection with the indebtedness of the Company, and has a Certificate of Formation, limited liability company agreement, Certificate of Incorporation or other comparable organizational document containing provisions identical to the provisions of Section 2.2 and 4.9 of this Agreement; and (b) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Company or any agreements relating to such indebtedness.
B. Notwithstanding any other provision of this Agreement and any other provision of law that otherwise so empowers the Company, the Company shall not, and the Member, Board and officers shall not permit the Company to, without the prior unanimous written consent of the Member and the affirmative vote of the Board (including 100% of the Independent Directors), institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition seeking or consent to reorganization or relief under applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or a substantial part of its property, or make any assignment for the benefit of creditors, or admit in writing its inability to pay its debts generally as they become due, or take action in furtherance of any such action. To the fullest extent permitted by law, including Section 18-1101(c) of the Participation Act, Independent Directors shall consider the interests of the Member and Servicing Agreement, form, acquire holders of the Company’s rated indebtedness in determining whether to vote for or hold any Subsidiary.against actions contemplated by Sections 4.9A(c) or (d) or 4.9B.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Wholesale Auto Receivables LLC)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify Notwithstanding any other provision of this Agreement and any provision of law that otherwise empowers the Company, the Company as a “special purpose” entity.
(a) For so long as shall not take any of the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company tofollowing actions:
(i) maintain financial statements separate from any Affiliate although it may act that would be included in the consolidated financial statements contravention of its parent or ultimate parent in accordance with GAAPthis Agreement;
(ii) at all times hold itself out any act that would, to the public Manager’s knowledge, make it impossible to carry on the normal business of the Company;
(iii) possess or assign rights in the Company’s assets or property for other than a Company purpose;
(iv) perform any act that would subject any Member to liability for the liabilities or obligations of the Company;
(v) so long as any Obligations are outstanding, incur, assume, guarantee, or otherwise become liable for any indebtedness or create any liens on any assets of the Company other than (1) Securities issued under Section 7 above, (2) indebtedness that (A) may be incurred by the Company in connection with the issuance of Securities, (B) provides for recourse solely to the assets pledged to secure such indebtedness and no recourse to the Company and does not constitute a legal entity separate from Member claim against the Company in the event its assets are insufficient to repay such indebtedness, (C) provides that any such indebtedness, other than indebtedness evidenced by Securities, by its terms is fully subordinated to any and all Securities, (D) provides that no action may be taken against assets pledged to secure such indebtedness if and so long as such assets are also pledged to secure outstanding Securities senior to such indebtedness and (E) provides that the holder thereof may not cause the filing of a petition in bankruptcy or take any similar action against the Company until at least 121 days after each obligation of the Company under any indebtedness evidenced by Securities is satisfied in full and (3) indebtedness the issuance of which will not result in the lowering or withdrawal of the rating on any outstanding Securities issued under Section 7 above by each nationally recognized statistical rating agency that has rated any such Securities at the request of the Company or any Affiliate (each, a “Rating Agency”);
(vi) make any loan or other advance of money to (a) any Affiliate or (b) except in the case of transactions permitted under the Basic Documents, any other Person or guarantee obligations of any Affiliate or, except in the case of transactions permitted under the Basic Documents, any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with commit or authorize any Affiliate upon terms that are commercially reasonable act of Bankruptcy or acquiesce in any act of Bankruptcy without the affirmative written consent of all of the Members, the Manager and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated PersonIndependent Manager;
(viii) pay the salaries so long as any Obligations are outstanding, consolidate, merge, or engage in any other business consolidation with, or convey or transfer all or substantially all of its own employeesassets to, if any Person without (1) the affirmative written consent of all of the Members, the Manager and maintainthe Independent Manager and (2) written confirmation from each Rating Agency that has rated any Securities that such consolidation, merger, conveyance or cause to be maintained, transfer will not result in a sufficient number lowering or withdrawal of employees, if any, in light of its contemplated business operationssuch rating;
(ix) not hold out its credit or assets as being available make discretionary distributions of cash to satisfy a Member without the obligations affirmative written consent of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Personeach Member;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolve, wind up or terminate, or permit the dissolution, liquidationwinding up or termination, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents Company without the affirmative written consent of each Member, the Manager and subject the Independent Manager and without notice to obtaining each Rating Agency then rating any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiaryoutstanding Securities.
Appears in 1 contract
Samples: Limited Liability Company Agreement (BLG Securities Company, LLC)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify The Board and the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, charter or statutory rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business. Unless otherwise contemplated or permitted by a Management Agreement, the Company shall, and Member also the Board shall cause the Company to:
(i) maintain financial statements 1. Pay its own liabilities, indebtedness and obligations from its own separate assets as the same shall become due;
2. Maintain books and records and bank accounts separate from those of the Parent Group and any Affiliate although other Person and maintain separate financial statements, except that it may also be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAPAffiliates;
(ii) 3. Be, and at all times hold itself out to the public as as, a legal entity separate and distinct from Member any other Person (including any member of the Parent Group), and not as a department or division of any other Person, and correct any known misunderstandings regarding its existence as a separate legal entity
4. Use its own stationery, invoices and checks;
(iii) file 5. File its own tax returns with respect to itself (or consolidated tax returns, if anyapplicable, including inclusion as a disregarded entity) as may be required under applicable law, ;
6. Not commingle or permit to be commingled its funds or other assets with those of any member of the extent (1) Parent Group or any other Person;
7. Maintain its assets in such a manner that it is not part of a consolidated group filing a consolidated return costly or returns difficult to segregate, ascertain or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle identify its individual assets with assets from those of any other Person;
(v) conduct its 8. Conduct business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ix) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identityname; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure 9. Observe the requirements of the Company, Act and this Agreement Failure of the Company or the Member or the Board on behalf of the Company, Company to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Memberthe Member or the Directors.
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents and subject to obtaining any approvals required under this Agreement; or
(vii) except as contemplated or permitted by the Participation and Servicing Agreement, form, acquire or hold any Subsidiary.
Appears in 1 contract
Limitations on the Company’s Activities. This Section 2.7 2.8 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(a) For so long as the Participation and Servicing Agreement is in effect, Member The Manager shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member the Manager also shall cause the Company to:
(i) maintain financial statements separate from any Affiliate although it may be included in the consolidated financial statements of its parent or ultimate parent in accordance with GAAP;
(ii) at all times hold itself out to the public as a legal entity separate from Member the Manager, the Members and any other Person;
(iiiii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayerLaw, and pay any taxes so required to be paid under applicable lawLaw;
(iviii) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(viv) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(viiv) maintain an arm’s length relationship with any Affiliate upon terms that are commercially reasonable and that are no less favorable to the Company than could be obtained in a comparable arm’s length transaction with an unrelated Person;
(viii) pay the salaries of its own employees, if any and maintain, or cause to be maintained, a sufficient number of employees, if any, in light of its contemplated business operations;
(ixvi) not hold out its credit or assets as being available to satisfy the obligations of others, or Guarantee or otherwise obligate itself with respect to the Debts of any other Person;
(x) allocate, fairly and reasonably, shared expenses, including any overhead for shared office space;
(xi) use separate stationery, invoices and checks;
(xiivii) except as contemplated hereby or by the Ancillary Documentshereby, not pledge its assets for the benefit of any other Person, or make any loans or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; andAffiliate;
(xiiiviii) observe all limited liability company formalities;
(ix) correct any known misunderstanding regarding its separateseparate identity; and
(xivx) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure of the Company, or Member the Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Memberthe Members.
(c) So long as Unless approved in writing by the Participation and Servicing Agreement is in effect, Member shall not permit Members holding a Dissolution Event or an Insolvency Event to occur with respect to majority of the Company to which Units, the Participant has not provided its written consent, and Member Manager also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including including, without limitation, any AffiliateAffiliate of the Company;
(ii) except to the extent expressly permitted hereunder, enter into any transaction with any Affiliate of the Company;
(iii) engage in any business unrelated to the Businesspurpose stated in Section 2.6;
(iiiiv) have any assets other than the Parent OP Units and those related to the Businesspurpose stated in Section 2.6;
(ivv) except to the extent expressly permitted hereunder, incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary DocumentsDebt;
(vvi) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vi) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests Person other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents Parent OP Units and subject to obtaining any approvals required under this Agreement; orSecurities, if any, issuable in respect thereof;
(vii) except as contemplated to the extent expressly permitted hereunder, execute or permitted by enter into any contract or agreement, whether oral or written (other this Agreement);
(viii) hire any employee or adopt, enter into or agree to comply with any other agreement regarding the Participation and Servicing Agreementemployment of any Person;
(ix) commence, settle or compromise any Action;
(x) issue any units or other securities of the Company other than pursuant to Section 5.1(d);
(xi) enter into any joint venture or partnership or other similar agreement or arrangement;
(xii) form, acquire or hold any Subsidiary; or
(xiii) except to the extent expressly permitted hereunder, agree or otherwise commit to take any of the foregoing actions.
Appears in 1 contract
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Limitations on the Company’s Activities. This Section 2.7 is being adopted in order to comply with certain provisions required in order to qualify Notwithstanding any other provision of this Agreement and any provision of law that otherwise empowers the Company, the Company as a “special purpose” entity.
(a) For so long as shall not take any of the Participation and Servicing Agreement is in effect, Member shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises, and Member also shall cause the Company tofollowing actions:
(i) maintain financial statements separate from any Affiliate although it may act that would be included in the consolidated financial statements contravention of its parent or ultimate parent in accordance with GAAPthis Agreement;
(ii) at all times hold itself out any act that would, to the public Manager’s knowledge, make it impossible to carry on the normal business of the Company;
(iii) possess or assign rights in the Company’s assets or property for other than a Company purpose;
(iv) perform any act that would subject any Member to liability for the liabilities or obligations of the Company;
(v) so long as any Obligations are outstanding, incur, assume, guarantee, or otherwise become liable for any indebtedness or create any liens on any assets of the Company other than (1) Securities issued under Section 7 above, (2) indebtedness as (A) may be incurred by the Company in connection with the issuance of Securities, (B) provides for recourse solely to the assets pledged to secure such indebtedness and no recourse to the Company and does not constitute a legal entity separate from Member claim against the Company in the event its assets are insufficient to repay such indebtedness, (C) provides that any such indebtedness, other than indebtedness evidenced by Securities, by its terms is fully subordinated to any and all Securities, (D) provides that no action may be taken against assets pledged to secure such indebtedness if and so long as such assets are also pledged to secure outstanding Securities senior to such indebtedness, and (E) provides that the holder thereof may not cause the filing of a petition in bankruptcy or take any similar action against the Company until at least 121 days after each obligation of the Company under any indebtedness evidenced by Securities is satisfied in full, and (3) indebtedness the issuance of which will not result in the lowering or withdrawal of the rating on any outstanding Securities issued under Section 7 above by each rating agency that has rated any such Securities at the request of the Company (each, a “Rating Agency”);
(vi) make any loan or other advance of money to (1) any Affiliate or (2) except in the case of transactions permitted under the Basic Documents, any other Person or guarantee obligations of (3) any Affiliate or (4) except in the case of transactions permitted under the Basic Documents, any other Person;
(iii) file its own tax returns, if any, as may be required under applicable law, to the extent (1) it is not part of a consolidated group filing a consolidated return or returns or (2) it is not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(iv) except as contemplated hereby or by the Ancillary Documents, not commingle its assets with assets of any other Person;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(vi) pay its own liabilities only out of its own funds;
(vii) maintain an arm’s length relationship with commit or authorize any Affiliate upon terms that are commercially reasonable and that are no less favorable to act of Bankruptcy or acquiesce in any act of Bankruptcy without the Company than could be obtained in a comparable arm’s length transaction with an unrelated Personaffirmative written consent of all of the Members;
(viii) pay the salaries so long as any Obligations are outstanding, consolidate, merge, or engage in any other business consolidation with, or convey or transfer all or substantially all of its own employeesassets to, if any Person without (1) the affirmative written consent of the Members, and maintain(2) written confirmation from each Rating Agency that has rated any Securities at the request of the Company that such consolidation, merger, conveyance or cause to be maintained, transfer will not result in a sufficient number lowering or withdrawal of employees, if any, in light of its contemplated business operationssuch rating;
(ix) not hold out its credit or assets as being available to satisfy the obligations make discretionary distributions of others, or Guarantee or otherwise obligate itself with respect cash to the Debts Class A Member, without the affirmative written consent of any other Personall of the Members;
(x) allocatechange its independent accountants, fairly and reasonably, shared expenses, including any overhead for shared office spacewithout the affirmative written consent of all of the Members;
(xi) use separate stationery, invoices and checks;
(xii) except as contemplated hereby adopt or by the Ancillary Documents, not pledge its assets for the benefit of any other Person, change a significant tax or make any loans accounting practice or advances to any other Person; provided that it may invest its funds in interest bearing accounts held by any bank that is not its Affiliate and make advances in accordance with the Participation and Servicing Agreement; identity; and
(xiii) correct any known misunderstanding regarding its separate
(xiv) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities, if any.
(b) The failure principle of the Company, make any significant tax or Member accounting election, or adopt any position for purposes of any tax return that will have a material adverse effect on behalf a Member, without the affirmative written consent of all of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of Member.Members; or
(c) So long as the Participation and Servicing Agreement is in effect, Member shall not permit a Dissolution Event or an Insolvency Event to occur with respect to the Company to which the Participant has not provided its written consent, and Member also shall not cause or permit the Company to:
(i) except as contemplated hereby or by the Ancillary Documents, Guarantee any obligation of any Person, including any Affiliate;
(ii) engage in any business unrelated to the Business;
(iii) have any assets other than those related to the Business;
(iv) incur, create or assume any Debt other than as expressly permitted hereby or by the Ancillary Documents;
(v) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Ancillary Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Ancillary Documents and permit the same to remain outstanding in accordance with such provisions;
(vixii) to the fullest extent permitted by law, engage in any dissolve, wind up or terminate, or permit the dissolution, liquidationwinding up or termination, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Ancillary Documents Company, without the affirmative written consent of all of the Members, and subject without notice to obtaining each Rating Agency then rating any approvals required under this Agreement; or
(vii) except as contemplated or permitted by outstanding Securities at the Participation and Servicing Agreement, form, acquire or hold any Subsidiaryrequest of the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Freedom Depository LLC)
