Limitations on the Company’s Activities. This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose entity”: (a) The Member shall not amend, alter, change or repeal Articles 2, 4, 10, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, or Schedule A of this Agreement (the “SPE Provisions”) except upon receipt of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions control. Subject to this Section 4.1, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.7. (b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, or any other Person, neither the Member nor the Board nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, and the written consent of the Independent Manager, to take any Material Action, provided, however, that none of the foregoing actions shall be consented to unless there is at least one Independent Manager then serving in such capacity. (c) The Board and 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. During the existence of the Company, the Board also shall cause the Company at all times to and the Company shall: (1) maintain its own separate books and records and bank accounts separate from those of any other Person; (2) at all times hold itself out to the public as a legal entity separate from the Member, other Affiliates and any other Person; (3) have its Board composed differently from that of the Member; (4) file its own tax returns, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law; (5) conduct its business in its own name; (6) maintain financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to); (7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any; (8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company; (9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities; (10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates; (11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name; (12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates; (13) hold title to its assets in its own name; (14) correct any known misunderstanding regarding its separate identity; (15) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities; (16) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and (17) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors. (d) During the life of the Company, the Board shall not cause or permit the Company at any time to and the Company shall not: (1) commingle its funds or other assets with those of any other Person; (2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person; (3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company; (4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 or this Section 4.1; (5) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company; (6) make or permit to remain outstanding any loan or advance to any other Person; (7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a); (8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes); (9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity; (10) engage in any business activity other than as stated in Section 2.1 of this Agreement; or (11) own any asset or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (3650 REIT Commercial Mortgage Securities II LLC), Limited Liability Company Agreement (3650 REIT Commercial Mortgage Securities II LLC), Limited Liability Company Agreement (3650 REIT Commercial Mortgage Securities LLC)
Limitations on the Company’s Activities. (a) This Section 4.1 7.05 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose entity”:".
(ab) The Member shall not amend, alter, change or repeal Articles 2, 4, 10, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, or Schedule A of this Agreement (Notwithstanding anything to the “SPE Provisions”) except upon receipt of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained contrary in this Agreement or in any other document governing the Certificate formation, management or operation of Formationthe Company, neither the SPE Provisions controlManager nor the Company shall amend, alter or change any of Sections 2.03, 2.04, 2.08 and 3.04, Article 4, Section 7.01(a), (e), and (f), Section 7.02, this Section 7.05, Section 9.01, Article 10, Section 11.01, Sections 12.01, 12.02, 12.03, 12.04, 13.02 and 13.06 (the "Special Purpose Provisions"), without the written consent of the Mortgage Lender and the Preferred Member. Subject to this Section 4.17.05 and Section 7.02, the Member Manager reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.713.02. In the event of any conflict between any of the Special Purpose Provisions and any other provision of this or any other document governing the formation, management or operation of the Company, the Special Purpose Provisions shall control.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the any Common Member, the BoardManager, any Officer, officer or any other Person, neither the Member Company nor the Board Common Members nor the Manager nor any other Person shall be authorized or empowered, nor shall they permit the CompanyCompany to, and the Company shall not, without the prior written consent of the Member, the unanimous written consent of the BoardPreferred Member, the Manager and the written consent of the Independent ManagerMortgage Lender, to take any Material Action. Notwithstanding anything to the contrary in this Agreement or in any other document governing the formation, provided, however, that none management or operation of the foregoing actions shall be consented Company, prior to unless there is at least one Independent taking any Material Action, the Members and the Manager then serving in such capacityshall, to the fullest extent permitted by law, including Section 18-l101(c) of the Delaware Act, take into account the interest of the Company's creditors, as well as those of the Company.
(cd) The Board and the Member 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. During ; provided, however, that the existence 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 that the loss thereof is not disadvantageous in any material respect to the Company, the Board .
(e) The Manager also shall cause the Company at all times to and the Company shall:
(1) maintain its own separate books and records and bank accounts separate from those of any other Person;
(2) at all times hold itself out to the public as a legal entity separate from the Member, other Affiliates and any other Person;
(3) have its Board composed differently from that of the Member;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) conduct its business in its own name;
(6) maintain financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to);
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14) correct any known misunderstanding regarding its separate identity;
(15) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(16) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and
(17) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(d) During the life of the Company, the Board shall not cause or permit the Company at any time to and the Company shall not:
(1) commingle its funds or other assets comply with those of any other Person;
(2) guarantee or become obligated for all the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 or this Section 4.1;
(5) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6) make or permit to remain outstanding any loan or advance to any other Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated requirements set forth in Section 2.1 of this Agreement; or
(11) own any asset or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding9.01 hereof.
Appears in 1 contract
Samples: Operating Agreement (Bluerock Residential Growth REIT, Inc.)
Limitations on the Company’s Activities. (i) This Section 4.1 9(c) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(aii) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Manager” or Sections 5(c), 47, 8, 9, 10, 11 15, 18, 19, 20, 21, 22, 23, 24, 27 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, 29 or Schedule A of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Member and the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Manager. Subject to this Section 4.19(c), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.729.
(biii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Independent Manager or any other Person, neither so long as any Obligation is outstanding, none of the Member nor Member, the Board nor Independent Manager or any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the Independent Manager, to take any Material Action, ; provided, however, that none of that, so long as any Obligation is outstanding, the foregoing actions shall be consented to Member may not vote on, or authorize the taking of, any Material Action unless there is at least one Independent Manager then serving in such capacity.
(civ) The Board and 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. During the existence of the Company, the Board The Member also shall cause the Company at all times to and to, except as contemplated by the Company shallBasic Documents:
(1A) keep and maintain its own accurate and separate books and records and its own bank accounts separate from those of any other Personaccounts;
(2B) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its Board composed differently from that of the Member;
(4C) file its own tax returns, if any, as may be required under applicable law, to the extent (a1) not part of a consolidated group filing a consolidated return or returns, returns or (b2) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5D) not commingle its assets with assets of any other Person;
(E) conduct its business and hold its assets in its own namename and strictly comply with all organizational formalities to maintain its separate existence;
(6F) maintain separate financial statements separate from those of any other Person (except statements, provided that the foregoing shall not prohibit the Company may also be listed on the from being included in consolidated financial statements of another Person the Member or any direct or indirect parent of the Member where required by applicable accounting standards;
(G) pay its own liabilities only out of its own funds;
(H) maintain an arm’s length relationship with its Affiliates and the accounting standards Member (the Basic Documents being hereby deemed to satisfy such Person is subject tostandard);
(7I) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with J) not hold out its Affiliates and credit or assets as being available to satisfy the Member and any other parties furnishing services to the Companyobligations of others;
(9K) participate in allocate fairly and reasonably any overhead for shared office space and pay or reimburse the fair and reasonable allocation cost thereof out of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entitiesits own funds;
(10L) use separate stationery, invoices, wire transfers invoices and checks (if applicable) bearing its own name separate from those of the Member or Affiliateschecks;
(11M) deposit all not pledge its assets for the benefit of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameany other Person;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14N) correct any known misunderstanding regarding its separate identity;
(15O) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(16P) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(Q) not acquire any securities of the Member; and
(17R) cause the Directors, Officers, any agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in foregoing; provided that the best interests of the Company. Failure failure of the Company, or the Member or Board 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 Member; and provided, further, that the entering into and performance by the Company of the Basic Documents in accordance with the terms and conditions thereof shall not be deemed to have caused the Company to have violated, or to have failed to comply with, any of the Directorsforegoing covenants set forth in this Section 9(c)(iv) or any other covenants contained in this Agreement.
(dv) During So long as any Obligation is outstanding, to the life of fullest extent permitted by law the Company, the Board Member shall not cause or permit the Company at any time to and to, except as required, permitted or contemplated by the Company shall notBasic Documents:
(1A) commingle its funds or other assets with those guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4B) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 7 or this Section 4.19(c);
(5C) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6D) make or permit to remain outstanding any loan or advance to or investment in, or own or acquire any other stock or securities of, any Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10E) engage in any business activity other than as stated in Section 2.1 of Material Action unless it has first obtained any approvals required under this Agreement; or
(11F) own form, acquire or hold any asset subsidiary (whether corporate, partnership, limited liability company or property other) other than (iin accordance with Section 7(xi) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingthis Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuco2 Inc /De)
Limitations on the Company’s Activities. (a) This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose purpose" entity”:.
(ab) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of "Independent Director", 4, 10, 11 Article One or 12, Sections 1.1, 1.6, 3.1(a2.04(c), 3.1(c)3.01, 3.23.02, 3.44.01, 3.74.02, 3.94.03, 7.24.05, 8.1(b)4.06, 9.14.07, 13.14.08, 13.24.09, 13.44.10, 13.54.11, 13.6 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 13.7, or Schedule A 9.02 of this Agreement without the unanimous written consent of the Board (including all Independent Directors) and the “SPE Provisions”) except upon receipt satisfaction of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlCondition. Subject to this Section 4.1Section, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.79.01.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Officer or any other Person, so long as any Obligation is outstanding, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the entire Board (including all Independent ManagerDirectors), to take any Material Action, ; provided, however, that none of the foregoing actions shall be consented to Board may not vote on, or authorize the taking of, any Material Action, unless there is are at least one two Independent Manager Directors then serving in such capacity.
(cd) The Board and 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; provided, however, that the Company shall not be required to preserve any such right or franchise if: (i) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (ii) the Rating Agency Condition is satisfied. During the existence of the Company, the The Board also shall cause the Company at all times to and the Company shallto:
(1) maintain its own separate books and records and bank accounts separate from those of any other Personaccounts;
(2) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its a Board composed differently of Directors separate from that of the MemberMember and any other Person;
(4) file its own tax returns, if any, returns as may be required under applicable tax law or authorize the Member to file on its behalf as agent such tax returns and reports, and make any elections required or allowed under such applicable tax law, and to pay or to have the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated Member pay on its behalf as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay agent any taxes so required to be paid under applicable law;
(5) not commingle its assets with assets of any other Person;
(6) conduct its business in its own name;
(6) name and strictly comply with all organizational formalities to maintain financial statements its separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)existence;
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, maintain separate financial statements;
(8) pay its own liabilities from only out of its own funds funds;
(9) maintain an arm's length relationship with its Affiliates and the Member;
(10) pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all not hold out its credit or assets as being available to satisfy the obligations of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameothers;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate allocate fairly and distinct from the Member and all of its other Affiliatesreasonably any overhead for shared office space;
(13) hold title to its assets in its own nameuse separate stationery, invoices and checks;
(14) except as otherwise contemplated by the Basic Documents, not pledge its assets for the benefit of any other Person;
(15) correct any known misunderstanding regarding its separate identity;
(1516) maintain adequate capital and a sufficient number of employees in light of its contemplated business purposepurposes, transactions and liabilities;
(1617) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(18) not acquire any securities of the Member; and
(1719) cause the its Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board shall not cause or permit the Company at any time to and the Company shall notto:
(1) commingle its funds or other assets with those except as contemplated in the Basic Documents, guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 Article Three, the Basic Documents or this Section 4.1Section;
(53) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted under Article Three, the sole recourse to assets of the Company, except that it may pledge one Basic Documents or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Companythis Section;
(64) 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 Article Three, the Basic Documents or this Section and may make any advance required or expressly permitted to be made pursuant to any other Personprovision of Article Three, the Basic Documents or this Section and permit the same to remain outstanding in accordance with such provisions;
(75) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with expressly permitted pursuant to any provision of Article Three, the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members Basic Documents or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this AgreementSection; or
(116) own except as contemplated by Article Three or the Basic Documents, form, acquire or hold any asset subsidiary (whether a corporation, partnership, limited liability company or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingentity).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bear Stearns Asset Backed Securities I LLC)
Limitations on the Company’s Activities. (a) This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose purpose" entity”:.
(ab) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of "Independent Director", 4, 10, 11 Article One or 12, Sections 1.1, 1.6, 3.1(a2.04(c), 3.1(c)3.01, 3.23.02, 3.44.01, 3.74.02, 3.94.03, 7.24.05, 8.1(b)4.06, 9.14.07, 13.14.08, 13.24.09, 13.44.10, 13.54.11, 13.6 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 13.7, or Schedule A 9.02 of this Agreement without the unanimous written consent of the Board (including all Independent Directors) and the “SPE Provisions”) except upon receipt satisfaction of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlCondition. Subject to this Section 4.1Section, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.79.01.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Officer or any other Person, so long as any Obligation is outstanding, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the entire Board (including all Independent ManagerDirectors), to take any Material Action, ; provided, however, that none of the foregoing actions shall be consented to Board may not vote on, or authorize the taking of, any Material Action, unless there is are at least one two Independent Manager Directors then serving in such capacity.
(cd) The Board and 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; provided, however, that the Company shall not be required to preserve any such right or franchise if: (i) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (ii) the Rating Agency Condition is satisfied. During the existence of the Company, the The Board also shall cause the Company at all times to and the Company shallCompany:
(1) to maintain its own separate books and records and bank accounts separate from those of any other Personaccounts;
(2) at all times to hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) to have its a Board composed differently of Directors separate from that of the MemberMember and any other Person;
(4) to file its own tax returns, if any, as may be required under applicable tax law, to the extent (aA) the Company is not part of a consolidated group filing a consolidated return or returns, returns or (bB) the Company is not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for authorize CarMax to file on its behalf as agent such tax purposes; returns and reports, and make any elections required or allowed under such applicable tax law, and to pay or to have CarMax pay on its behalf as agent any taxes so required to be paid under applicable law;
(5) except as contemplated by the Basic Documents, not to commingle its assets with assets of any other Person;
(6) to conduct its business in its own name;
(6) name and strictly comply with all organizational formalities to maintain financial statements its separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)existence;
(7) except for to maintain separate financial statements;
(8) to pay its own liabilities only out of its own funds; provided, however, that CarMax may pay certain overhead and transaction costs that are allocated on a reasonable basis among of the organizational expenses of the Company and certain expenses relating to the documentation of the Company's financing activities;
(9) to maintain an arm's length relationship with its Affiliates, pay its own liabilities from its own funds Affiliates and the Member;
(10) to pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all except as otherwise contemplated by the Basic Documents, not to guarantee or become obligated for the debts of others or hold out its funds in checking accounts, savings accounts, time deposits credit or certificates assets as being available to satisfy the obligations of deposit in its own name or invest such funds in its own nameothers;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate allocate fairly and distinct from the Member and all of its other Affiliatesreasonably any overhead for shared office space;
(13) hold title to its assets in its own nameuse separate stationery, invoices and checks;
(14) except as otherwise contemplated by the Basic Documents, not to pledge its assets for the benefit of any other Person;
(15) to correct any known misunderstanding regarding its separate identity;
(1516) to maintain adequate capital and a sufficient number of employees in light of its contemplated business purposepurposes, transactions and liabilities;
(1617) to cause its the Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(18) not to acquire any securities of the Member;
(19) not to take any action if, as a result of such action, the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended; and
(1720) to cause the its Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board shall not cause or permit the Company at any time to and the Company shall notto:
(1) commingle its funds or other assets with those except as contemplated in the Basic Documents, guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions activities required or permitted to be performed under Section 2.1 Article Three, the Basic Documents or this Section 4.1Section;
(53) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted under Article Three, the sole recourse to assets of the Company, except that it may pledge one Basic Documents or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Companythis Section;
(64) 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 Article Three, the Basic Documents or this Section and may make any advance required or expressly permitted to be made pursuant to any other Personprovision of Article Three, the Basic Documents or this Section and permit the same to remain outstanding in accordance with such provisions;
(75) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with expressly permitted pursuant to any provision of Article Three, the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members Basic Documents or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this AgreementSection; or
(116) own except as contemplated by Article Three or the Basic Documents, form, acquire or hold any asset subsidiary (whether a corporation, partnership, limited liability company or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingentity).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carmax Auto Funding LLC)
Limitations on the Company’s Activities. (a) This Section 4.1 9.4 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(ab) The Member Members shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Manager” or Sections 4.1, 48.1, 108.2, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b8.3(b), 9.1, 9.3, 9.4, 12.1, 13.1, 13.214.1, 13.415.1, 13.5, 13.6 or 13.716.1, or Schedule A 17.2 or the Definitions Addendum of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlManagers (including all Independent Managers). Subject to this Section 4.19.4, the Member reserves Members reserve the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.717.2.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the MemberMembers, the BoardManagers, any Officer, Officer or any other Person, neither the Member Members nor the Board Managers nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, and the written consent of the Managers (including all Independent ManagerManagers), to take any Material Action, provided, however, that none of as long as any Obligation is outstanding, the foregoing actions shall be consented to Managers may not vote on, or authorize the taking of, any Material Action, unless there is at least one Independent Manager then serving in such capacity.
(cd) The Board Managers and the Member Members 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: (1) the Managers shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (2) the Rating Agency Condition is satisfied. During the existence of the Company, the Board The Managers also shall cause the Company at all times to and the Company shallto:
(1i) maintain its own separate books and records and bank accounts separate from those of the Members or any other Personperson;
(2ii) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Members and any other Person;
(3) have its Board composed differently from that of the Member;
(4iii) file its own tax returns, if any, as may be required under applicable law, to the extent (a1) not part of a consolidated group filing a consolidated return or returns, returns or (b2) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5iv) except as contemplated by the Transaction Documents, not commingle its assets with assets of the Members or any other Person;
(v) conduct its business in its own namename and strictly comply with all organizational formalities to maintain its separate existence;
(6vi) maintain separate financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)statements;
(7vii) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from only out of its own funds funds;
(viii) maintain an arm’s length relationship with its Affiliates and the Members;
(ix) pay the salaries of its own employees, if any;
(8) maintain x) not hold out its credit or assets as being available to satisfy the obligations of others;
(xi) to the extent its office is located in the offices of any Affiliate, pay fair market rent for its office space located therein, and otherwise allocate fairly and reasonably any overhead expenses shared with any Affiliate, and not engage in any business transaction with any Affiliate unless on an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Companybasis;
(9xii) participate in the fair use separate stationery, invoices and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entitieschecks;
(10xiii) use stationeryexcept as contemplated by the Transaction Documents, invoices, wire transfers and checks (if applicable) bearing not pledge its own name separate from those assets for the benefit of the Member any other Person or Affiliatesmake any loans or advances to any other Person;
(11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14xiv) correct any known misunderstanding regarding its separate identity;
(15xv) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(16xvi) cause its Board of Directors Managers to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; ;
(xvii) not acquire any securities of the Members and
(17xviii) cause the DirectorsManagers, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member Members or Board the Managers 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 Members or the DirectorsManagers.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board Managers shall not cause or permit the Company at any time to and the Company shall notto:
(1i) commingle its funds or other assets with those of any other Person;
(2) except as contemplated by the Transaction Documents, guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of Person, including any other PersonAffiliate;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4ii) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 4.1, the Transaction Documents or this Section 4.19.4;
(5iii) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted hereunder and under the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the CompanyTransaction Documents;
(6iv) make or permit to remain outstanding any loan or advance to, or except as permitted by Section 9.4(c), own or acquire any stock or securities of, any Person, except that the Company may invest in those investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any other Personprovisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(7v) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or expressly permitted pursuant to any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion provision of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this AgreementTransaction Documents; or
(11vi) own except as contemplated by Section 4.1(a) or Section 9.4(c), form, acquire or hold any asset subsidiary (whether corporate, partnership, limited liability company or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingother).
Appears in 1 contract
Samples: Limited Liability Company Agreement (RFS Holding LLC)
Limitations on the Company’s Activities. This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose entity”:
(a) The Member shall not amend, alter, change or repeal Articles 2, 4, 10, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, or Schedule A of this Agreement (the “SPE Provisions”) except upon receipt of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions control. Subject to this Section 4.1, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.7.
(b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, or any other Person, neither the Member nor the Board nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, and the written consent of the Independent Manager, to take any Material Action, provided, however, that none of the foregoing actions shall be consented to unless there is at least one Independent Manager then serving in such capacity.
(c) The Board and 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. During the existence of the Company, the Board also shall cause the Company at all times to and the Company shall:
(1) maintain its own separate books and records and bank accounts separate from those of any other Person;
(2) at all times hold itself out to the public as a legal entity separate from the Member, other Affiliates and any other Person;
(3) have its Board composed differently from that of the Member;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) conduct its business in its own name;
(6) maintain financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to);
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14) correct any known misunderstanding regarding its separate identity;
(15) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(16) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and
(17) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(d) During the life of the Company, the Board shall not cause or permit the Company at any time to and the Company shall not:
(1) commingle its funds or other assets with those of any other Person;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 or this Section 4.1;
(5) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6) make or permit to remain outstanding any loan or advance to any other Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this Agreement; or
(11) own any asset or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Natixis Commercial Mortgage Securities LLC)
Limitations on the Company’s Activities. (a) This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose purpose" entity”:.
(ab) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of "Independent Director", 4, 10, 11 Article One or 12, Sections 1.1, 1.6, 3.1(a2.04(c), 3.1(c)3.01, 3.23.02, 3.44.01, 3.74.02, 3.94.03, 7.24.05, 8.1(b)4.06, 9.14.07, 13.14.08, 13.24.09, 13.44.10, 13.54.11, 13.6 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 13.7, or Schedule A 9.02 of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Board (including the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Director). Subject to this Section 4.1Section, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.79.01.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Officer or any other Person, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of Board (including the Independent ManagerDirector), to take any Material Action, ; provided, however, that none of the foregoing actions shall be consented to Board may not vote on, or authorize the taking of, any Material Action, unless there is at least one Independent Manager Director then serving in such capacity.
(cd) The Board and 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; provided, however, that the Company shall not be required to preserve any such right or franchise if: (i) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (ii) the Rating Agency Condition is satisfied. During the existence of the Company, the The Board also shall cause the Company at all times to and the Company shallto:
(1) maintain its own separate books and records and bank accounts separate from those of any other Personaccounts;
(2) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its a Board composed differently of Directors separate from that of the MemberMember and any other Person;
(4) file cause to be filed its own tax returns, if any, as may be required under applicable law, to the extent (aA) not part of a consolidated group filing a consolidated return or returns, returns or (bB) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) except as contemplated by the Basic Documents, not commingle its assets with assets of any other Person;
(6) conduct its business in its own name;
(6) name and strictly comply with all organizational formalities to maintain financial statements its separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)existence;
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, maintain separate financial statements;
(8) pay its own liabilities from liabilities;
(9) maintain an arm's length relationship with its own funds Affiliates and the Member;
(10) pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all not hold out its credit or assets as being available to satisfy the obligations of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameothers;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate allocate fairly and distinct from the Member and all of its other Affiliatesreasonably any overhead for shared office space;
(13) hold title to its assets in its own nameuse separate stationery, invoices and checks;
(14) except as contemplated by the Basic Documents, not pledge its assets for the benefit of any other Person;
(15) correct any known misunderstanding regarding its separate identityidentity and refrain from engaging in any activity that compromises the separate legal identity of the Company;
(1516) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(1617) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware Nevada limited liability company formalities;
(18) not acquire any securities or assume any obligation or liability of the Member; and
(1719) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure The failure of the Company, or the Member or Board 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 or the Directors.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board shall not cause or permit the Company at any time to and the Company shall notto:
(1) commingle its funds or other assets with those except as contemplated by the Basic Documents, guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 3.01, the Basic Documents or this Section 4.1Section;
(53) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted under the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the CompanyBasic Documents;
(64) 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 Basic Documents and may make any advance required or expressly permitted to be made pursuant to any other Personprovisions of the Basic Documents and permit the same to remain outstanding in accordance with such provisions;
(75) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with expressly permitted pursuant to any provision of the deposit of mortgage loans into trust funds in accordance with Section 2.1(a)Basic Documents;
(8) identify its Members 6) form, acquire or hold any of its Affiliates as a division subsidiary (whether corporate, partnership, limited liability company or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposesother);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this Agreement; or
(117) own any asset sell, pledge, transfer, assign or property other than (i) otherwise convey the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership interest of the Permitted HoldingMember.
Appears in 1 contract
Limitations on the Company’s Activities. (a) This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(ab) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Director”, 4, 10, 11 Article One or 12, Sections 1.1, 1.6, 3.1(a2.04(c), 3.1(c)3.01, 3.23.02, 3.44.01, 3.74.02, 3.94.03, 7.24.05, 8.1(b)4.06, 9.14.07, 13.14.08, 13.24.09, 13.44.10, 13.54.11, 13.6 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 13.7, or Schedule A 9.02 of this Agreement without the unanimous written consent of the Board (including all Independent Directors) and the “SPE Provisions”) except upon receipt satisfaction of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlCondition. Subject to this Section 4.1Section, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.79.01.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Officer or any other Person, so long as any Obligation is outstanding, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the entire Board (including all Independent ManagerDirectors), to take any Material Action, ; provided, however, that none of the foregoing actions shall be consented to Board may not vote on, or authorize the taking of, any Material Action, unless there is are at least one two Independent Manager Directors then serving in such capacity.
(cd) The Board and 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; provided, however, that the Company shall not be required to preserve any such right or franchise if: (i) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (ii) the Rating Agency Condition is satisfied. During the existence of the Company, the The Board also shall cause the Company at all times to and the Company shallCompany:
(1) to maintain its own separate books and records and bank accounts separate from those of any other Personaccounts;
(2) at all times to hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) to have its a Board composed differently of Directors separate from that of the MemberMember and any other Person;
(4) to file its own tax returns, if any, as may be required under applicable tax law, to the extent (aA) the Company is not part of a consolidated group filing a consolidated return or returns, returns or (bB) the Company is not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for authorize CarMax to file on its behalf as agent such tax purposes; returns and reports, and make any elections required or allowed under such applicable tax law, and to pay or to have CarMax pay on its behalf as agent any taxes so required to be paid under applicable law;
(5) except as contemplated by the Basic Documents, not to commingle its assets with assets of any other Person;
(6) to conduct its business in its own name;
(6) name and strictly comply with all organizational formalities to maintain financial statements its separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)existence;
(7) except for to maintain separate financial statements;
(8) to pay its own liabilities only out of its own funds; provided, however, that CarMax may pay certain overhead and transaction costs that are allocated on a reasonable basis among of the organizational expenses of the Company and certain expenses relating to the documentation of the Company’s financing activities;
(9) to maintain an arm’s length relationship with its Affiliates, pay its own liabilities from its own funds Affiliates and the Member;
(10) to pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all except as otherwise contemplated by the Basic Documents, not to guarantee or become obligated for the debts of others or hold out its funds in checking accounts, savings accounts, time deposits credit or certificates assets as being available to satisfy the obligations of deposit in its own name or invest such funds in its own nameothers;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate allocate fairly and distinct from the Member and all of its other Affiliatesreasonably any overhead for shared office space;
(13) hold title to its assets in its own nameuse separate stationery, invoices and checks;
(14) except as otherwise contemplated by the Basic Documents, not to pledge its assets for the benefit of any other Person;
(15) to correct any known misunderstanding regarding its separate identity;
(1516) to maintain adequate capital and a sufficient number of employees in light of its contemplated business purposepurposes, transactions and liabilities;
(1617) to cause its the Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(18) not to acquire any securities of the Member;
(19) not to take any action if, as a result of such action, the Company would be required to register as an investment company under the Investment Company Act of 1940, as amended; and
(1720) to cause the its Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board shall not cause or permit the Company at any time to and the Company shall notto:
(1) commingle its funds or other assets with those except as contemplated in the Basic Documents, guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions activities required or permitted to be performed under Section 2.1 Article Three, the Basic Documents or this Section 4.1Section;
(53) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted under Article Three, the sole recourse to assets of the Company, except that it may pledge one Basic Documents or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Companythis Section;
(64) 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 Article Three, the Basic Documents or this Section and may make any advance required or expressly permitted to be made pursuant to any other Personprovision of Article Three, the Basic Documents or this Section and permit the same to remain outstanding in accordance with such provisions;
(75) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with expressly permitted pursuant to any provision of Article Three, the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members Basic Documents or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this AgreementSection; or
(116) own except as contemplated by Article Three or the Basic Documents, form, acquire or hold any asset subsidiary (whether a corporation, partnership, limited liability company or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingentity).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carmax Auto Funding LLC)
Limitations on the Company’s Activities. (i) This Section 4.1 9(c) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(aii) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Manager” or Sections 5(c), 47, 8, 9, 10, 11 15, 18, 19, 20, 21, 22, 23, 24, 27 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, 29 or Schedule A of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Member and the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Manager. Subject to this Section 4.19(c), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.729.
(biii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Independent Manager or any other Person, neither so long as any Obligation is outstanding, none of the Member nor Member, the Board nor Independent Manager or any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the Independent Manager, to take any Material Action, ; provided, however, that none of that, so long as any Obligation is outstanding, the foregoing actions shall be consented to Member may not vote on, or authorize the taking of, any Material Action unless there is at least one Independent Manager then serving in such capacity.
(civ) The Board and 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. During the existence of the Company, the Board The Member also shall cause the Company at all times to and to, except as contemplated by the Company shallBasic Documents:
(1A) keep and maintain its own accurate and separate books and records and its own bank accounts separate from those of any other Personaccounts;
(2B) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its Board composed differently from that of the Member;
(4C) file its own tax returns, if any, as may be required under applicable law, to the extent (a1) not part of a consolidated group filing a consolidated return or returns, returns or (b2) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5D) not commingle its assets with assets of any other Person;
(E) conduct its business and hold its assets in its own namename and strictly comply with all organizational formalities to maintain its separate existence;
(6F) maintain separate financial statements separate from those of any other Person (except statements, provided that the foregoing shall not prohibit the Company may also be listed on the from being included in consolidated financial statements of another Person the Member or any direct or indirect parent of the Member where required by applicable accounting standards;
(G) pay its own liabilities only out of its own funds;
(H) maintain an arm’s length relationship with its Affiliates and the accounting standards Member (the Basic Documents being hereby deemed to satisfy such Person is subject tostandard);
(7I) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with J) not hold out its Affiliates and credit or assets as being available to satisfy the Member and any other parties furnishing services to the Companyobligations of others;
(9K) participate in allocate fairly and reasonably any overhead for shared office space and pay or reimburse the fair and reasonable allocation cost thereof out of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entitiesits own funds;
(10L) use separate stationery, invoices, wire transfers invoices and checks (if applicable) bearing its own name separate from those of the Member or Affiliateschecks;
(11M) deposit all not pledge its assets for the benefit of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameany other Person;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14N) correct any known misunderstanding regarding its separate identity;
(15O) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(16P) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(Q) not acquire any securities of the Member; and
(17R) cause the Directors, Officers, any agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in foregoing; provided that the best interests of the Company. Failure failure of the Company, or the Member or Board 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 Member; and provided further, that the entering into and performance by the Company of the Basic Documents in accordance with the terms and conditions thereof shall not be deemed to have caused the Company to have violated, or to have failed to comply with, any of the Directorsforegoing covenants set forth in this Section 9(c)(iv) or any other covenants contained in this Agreement.
(dv) During So long as any Obligation is outstanding, to the life of the Companyfullest extent permitted by law, the Board Member shall not cause or permit the Company at any time to and to, except as required, permitted or contemplated by the Company shall notBasic Documents:
(1A) commingle its funds or other assets with those guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4B) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 7 or this Section 4.19(c);
(5C) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6D) make or permit to remain outstanding any loan or advance to or investment in, or own or acquire any other stock or securities of, any Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10E) engage in any business activity other than as stated in Section 2.1 of Material Action unless it has first obtained any approvals required under this Agreement; or
(11F) own form, acquire or hold any asset subsidiary (whether corporate, partnership, limited liability company or property other) other than (iin accordance with Section 7(xii) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingthis Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuco2 Inc /De)
Limitations on the Company’s Activities. This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose entity”:
(a) The Member shall not amend, alter, change or repeal Articles 2, 4, 10, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, or Schedule A of this Agreement (the “SPE Provisions”) except upon receipt of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions control. Subject to this Section 4.1, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.7.
(b) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, or any other Person, neither the Member nor the Board nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, and the written consent of the Independent Manager, to take any Material Action, provided, however, that none of the foregoing actions shall be consented to unless there is at least one Independent Manager then serving in such capacity.
(c) The Board and 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. During the existence of the Company, the Board also shall cause the Company at all times to and the Company shall:
(1) maintain its own separate books and records and bank accounts separate from those of any other Person;
(2) at all times hold itself out to the public as a legal entity separate from the Member, other Affiliates and any other Person;
(3) have its Board composed differently from that of the Member;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) conduct its business in its own name;
(6) maintain financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by GAAP; provided, however, that such financial statements contain a footnote to the accounting standards effect that the Company is a separate legal entity, the assets of which are not available to satisfy the debts of such Person is subject toPerson);
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers invoices and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14) correct any known misunderstanding regarding its separate identity;
(15) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(16) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and
(17) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(d) During the life of the Company, the Board shall not cause or permit the Company at any time to and the Company shall not:
(1) commingle its funds or other assets with those of any other Person;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 or this Section 4.1;
(5) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6) make or permit to remain outstanding any loan or advance to any other Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this Agreement; or
(11) own any asset or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Barclays Commercial Mortgage Securities LLC)
Limitations on the Company’s Activities. (i) This Section 4.1 9(c) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(aii) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Manager” or Sections 5(c), 47, 8, 9, 10, 11 15, 18, 19, 20, 21, 22, 23, 24, 27 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, 29 or Schedule A of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Member and the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Manager. Subject to this Section 4.19(c), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.729.
(biii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Independent Manager or any other Person, neither so long as any Obligation is outstanding, none of the Member nor Member, the Board nor Independent Manager or any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the Independent Manager, to take any Material Action, ; provided, however, that none of that, so long as any Obligation is outstanding, the foregoing actions shall be consented to Member may not vote on, or authorize the taking of, any Material Action unless there is at least one Independent Manager then serving in such capacity.
(civ) The Board and 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. During the existence of the Company, the Board The Member also shall cause the Company at all times to and to, except as contemplated by the Company shallBasic Documents:
(1A) keep and maintain its own accurate and separate books and records and its own bank accounts separate from those of any other Personaccounts;
(2B) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its Board composed differently from that of the Member;
(4C) file its own tax returns, if any, as may be required under applicable law, to the extent (a1) not part of a consolidated group filing a consolidated return or returns, returns or (b2) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5D) not commingle its assets with assets of any other Person;
(E) conduct its business and hold its assets in its own namename and strictly comply with all organizational formalities to maintain its separate existence;
(6F) maintain separate financial statements separate from those of any other Person (except statements, provided that the foregoing shall not prohibit the Company may also be listed on the from being included in consolidated financial statements of another Person the Member or any direct or indirect parent of the Member where required by applicable accounting standards;
(G) pay its own liabilities only out of its own funds;
(H) maintain an arm’s length relationship with its Affiliates and the accounting standards Member (the Basic Documents being hereby deemed to satisfy such Person is subject tostandard);
(7I) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with J) not hold out its Affiliates and credit or assets as being available to satisfy the Member and any other parties furnishing services to the Companyobligations of others;
(9K) participate in allocate fairly and reasonably any overhead for shared office space and pay or reimburse the fair and reasonable allocation cost thereof out of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entitiesits own funds;
(10L) use separate stationery, invoices, wire transfers invoices and checks (if applicable) bearing its own name separate from those of the Member or Affiliateschecks;
(11M) deposit all not pledge its assets for the benefit of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameany other Person;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14N) correct any known misunderstanding regarding its separate identity;
(15O) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(16P) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(Q) not acquire any securities of the Member; and
(17R) cause the Directors, Officers, any agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in foregoing; provided that the best interests of the Company. Failure failure of the Company, or the Member or Board 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 Member; and provided further, that the entering into and performance by the Company of the Basic Documents in accordance with the terms and conditions thereof shall not be deemed to have caused the Company to have violated, or to have failed to comply with, any of the Directorsforegoing covenants set forth in this Section 9(c)(iv) or any other covenants contained in this Agreement.
(dv) During So long as any Obligation is outstanding, to the life of fullest extent permitted by law the Company, the Board Member shall not cause or permit the Company at any time to and to, except as required, permitted or contemplated by the Company shall notBasic Documents:
(1A) commingle its funds or other assets with those guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4B) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 7 or this Section 4.19(c);
(5C) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6D) make or permit to remain outstanding any loan or advance to or investment in, or own or acquire any other stock or securities of, any Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10E) engage in any business activity other than as stated in Section 2.1 of Material Action unless it has first obtained any approvals required under this Agreement; or
(11F) own form, acquire or hold any asset subsidiary (whether corporate, partnership, limited liability company or property other) other than (iin accordance with Section 7(xv) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holdingthis Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuco2 Inc /De)
Limitations on the Company’s Activities. (a) This Section 4.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(ab) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Director”, 4, 10, 11 Article One or 12, Sections 1.1, 1.6, 3.1(a2.04(c), 3.1(c)3.01, 3.23.02, 3.44.01, 3.74.02, 3.94.03, 7.24.05, 8.1(b)4.06, 9.14.07, 13.14.08, 13.24.09, 13.44.10, 13.54.11, 13.6 5.04, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 9.01 or 13.7, or Schedule A 9.02 of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Board (including the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Director). Subject to this Section 4.1Section, the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.79.01.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Officer or any other Person, neither the Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of Board (including the Independent ManagerDirector), to take any Material Action, ; provided, however, that none of the foregoing actions shall be consented to Board may not vote on, or authorize the taking of, any Material Action, unless there is at least one Independent Manager Director then serving in such capacity.
(cd) The Board and 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; provided, however, that the Company shall not be required to preserve any such right or franchise if: (i) the Board shall determine that the preservation thereof is no longer desirable for the conduct of its business and that the loss thereof is not disadvantageous in any material respect to the Company and (ii) the Rating Agency Condition is satisfied. During the existence of the Company, the The Board also shall cause the Company at all times to and the Company shallto:
(1) maintain its own separate books and records and bank accounts separate from those of any other Personaccounts;
(2) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its a Board composed differently of Directors separate from that of the MemberMember and any other Person;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (aA) not part of a consolidated group filing a consolidated return or returns, returns or (bB) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) except as contemplated by the Basic Documents, not commingle its assets with assets of any other Person;
(6) conduct its business in its own name;
(6) name and strictly comply with all organizational formalities to maintain financial statements its separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to)existence;
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, maintain separate financial statements;
(8) pay its own liabilities from liabilities;
(9) maintain an arm’s length relationship with its own funds Affiliates and the Member;
(10) pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all not hold out its credit or assets as being available to satisfy the obligations of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameothers;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate allocate fairly and distinct from the Member and all of its other Affiliatesreasonably any overhead for shared office space;
(13) hold title to its assets in its own nameuse separate stationary, invoices and checks;
(14) except as contemplated by the Basic Documents, not pledge its assets for the benefit of any other Person;
(15) correct any known misunderstanding regarding its separate identityidentity and refrain from engaging in any activity that compromises the separate legal identity of the Company;
(1516) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(1617) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(18) not acquire any securities or assume any obligation or liability of the Member; and
(1719) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure ; failure of the Company, or the Member or Board 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 or the Directors.
(de) During the life of the CompanySo long as any Obligation is outstanding, the Board shall not cause or permit the Company at any time to and the Company shall notto:
(1) commingle its funds or other assets with those except as contemplated by the Basic Documents, guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 3.01, the Basic Documents or this Section 4.1Section;
(53) incur, create or assume any indebtedness, indebtedness other than indebtedness with as expressly permitted under the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the CompanyBasic Documents;
(64) 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 Basic Documents and may make any advance required or expressly permitted to be made pursuant to any other Personprovisions of the Basic Documents and permit the same to remain outstanding in accordance with such provisions;
(75) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers activities as are conducted in connection with expressly permitted pursuant to any provision of the deposit of mortgage loans into trust funds in accordance with Section 2.1(a)Basic Documents;
(8) identify its Members 6) form, acquire or hold any of its Affiliates as a division subsidiary (whether corporate, partnership, limited liability company or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposesother);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated in Section 2.1 of this Agreement; or
(117) own any asset sell, pledge, transfer, assign or property other than (i) otherwise convey the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership interest of the Permitted HoldingMember.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Wachovia Education Loan Funding LLC)
Limitations on the Company’s Activities. (i) This Section 4.1 9(c) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose purpose” entity”:.
(aii) The Member shall not not, so long as any Obligation is outstanding, amend, alter, change or repeal Articles 2the definition of “Independent Manager” or Sections 5(c), 47, 8, 9, 10, 11 15, 18, 19, 20, 21, 22, 23, 24, 27 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, 29 or Schedule A of this Agreement (without the “SPE Provisions”) except upon receipt unanimous written consent of the Rating Agency Confirmation. In Member and the event of any conflict between any of the SPE Provisions and any other provision contained in this Agreement or in the Certificate of Formation, the SPE Provisions controlIndependent Manager. Subject to this Section 4.19(c), the Member reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.729.
(biii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Board, any Officer, Independent Manager or any other Person, neither so long as any Obligation is outstanding, none of the Member nor Member, the Board nor Independent Manager or any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior written consent of the Member, the unanimous written consent of the Board, Member and the written consent of the Independent Manager, to take any Material Action, ; provided, however, that none of that, so long as any Obligation is outstanding, the foregoing actions shall be consented to Member may not vote on, or authorize the taking of, any Material Action unless there is at least one Independent Manager then serving in such capacity.
(civ) The Board and 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. During the existence of the Company, the Board The Member also shall cause the Company at all times to and to, except as contemplated by the Company shallBasic Documents:
(1A) keep and maintain its own accurate and separate books and records and its own bank accounts separate from those of any other Personaccounts;
(2B) at all times hold itself out to the public and all other Persons as a legal entity separate from the Member, other Affiliates Member and any other Person;
(3) have its Board composed differently from that of the Member;
(4C) file its own tax returns, if any, as may be required under applicable law, to the extent (a1) not part of a consolidated group filing a consolidated return or returns, returns or (b2) not treated as a division (for tax purposes) purposes of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5D) not commingle its assets with assets of any other Person;
(E) conduct its business and hold its assets in its own namename and strictly comply with all organizational formalities to maintain its separate existence;
(6F) maintain separate financial statements separate from those of any other Person (except statements, provided that the foregoing shall not prohibit the Company may also be listed on the from being included in consolidated financial statements of another Person the Member or any direct or indirect parent of the Member where required by applicable accounting standards;
(G) pay its own liabilities only out of its own funds;
(H) maintain an arm’s length relationship with its Affiliates and the accounting standards Member (the Basic Documents being hereby deemed to satisfy such Person is subject tostandard);
(7I) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with J) not hold out its Affiliates and credit or assets as being available to satisfy the Member and any other parties furnishing services to the Companyobligations of others;
(9K) participate in allocate fairly and reasonably any overhead for shared office space and pay or reimburse the fair and reasonable allocation cost thereof out of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entitiesits own funds;
(10L) use separate stationery, invoices, wire transfers invoices and checks (if applicable) bearing its own name separate from those of the Member or Affiliateschecks;
(11M) deposit all not pledge its assets for the benefit of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own nameany other Person;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14N) correct any known misunderstanding regarding its separate identity;
(15O) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(16P) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(Q) not acquire any securities of the Member; and
(17R) cause the Directors, Officers, any agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in foregoing; provided that the best interests of the Company. Failure failure of the Company, or the Member or Board 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 Member; and provided further, that the entering into and performance by the Company of the Basic Documents in accordance with the terms and conditions thereof shall not be deemed to have caused the Company to have violated, or to have failed to comply with, any of the Directorsforegoing covenants set forth in this Section 9(c)(iv) or any other covenants contained in this Agreement.
(dv) During So long as any Obligation is outstanding, to the life of the Companyfullest extent permitted by law, the Board Member shall not cause or permit the Company at any time to and to, except as required, permitted or contemplated by the Company shall notBasic Documents:
(1A) commingle its funds or other assets with those guarantee any obligation of any other Person, including any Affiliate;
(2) guarantee or become obligated for the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4B) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 7 or this Section 4.19(c);
(5C) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6D) make or permit to remain outstanding any loan or advance to or investment in, or own or acquire any other stock or securities of, any Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10E) engage in any business activity other than as stated in Section 2.1 of Material Action unless it has first obtained any approvals required under this Agreement; or
(11F) own form, acquire or hold any asset subsidiary (whether corporate, partnership, limited liability company or property other) other than (iin accordance with Section 7(xi) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding.this Agreement;
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuco2 Inc /De)
Limitations on the Company’s Activities. (a) This Section 4.1 7.05 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose entity”:.
(ab) The Member shall not amend, alter, change or repeal Articles 2, 4, 10, 11 or 12, Sections 1.1, 1.6, 3.1(a), 3.1(c), 3.2, 3.4, 3.7, 3.9, 7.2, 8.1(b), 9.1, 13.1, 13.2, 13.4, 13.5, 13.6 or 13.7, or Schedule A of this Agreement (Notwithstanding anything to the “SPE Provisions”) except upon receipt of the Rating Agency Confirmation. In the event of any conflict between any of the SPE Provisions and any other provision contained contrary in this Agreement or in any other document governing the Certificate formation, management or operation of Formationthe Company, neither the SPE Provisions controlManager nor the Company shall amend, alter or change any of Sections 2.03, 2.04, 2.08 and 3.04, Article 4, Section 7.01(a), (e) and (f), Section 7.02, this Section 7.05, Section 9.01, Article 10, Section 11.01, Sections 12.01, 12.02, 12.03, 12.04, 13.02, and 13.06 (the “Special Purpose Provisions”), without the written consent of the Mortgage Lender. Subject to this Section 4.17.05 and Section 7.02, the Member Manager reserves the right to amend, alter, change or repeal any provisions contained in this Agreement in accordance with Section 13.713.02. In the event of any conflict between any of the Special Purpose Provisions and any other provision of this or any other document governing the formation, management or operation of the Company, the Special Purpose Provisions shall control.
(bc) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the any Common Member, the BoardManager, any Officer, officer or any other Person, neither the Member Company nor the Board Common Members nor the Manager nor any other Person shall be authorized or empowered, nor shall they permit the CompanyCompany to, and the Company shall not, without the prior written consent of the Member, the unanimous written consent of the Board, Manager and the written consent of the Independent ManagerMortgage Lender, to take any Material Action. Notwithstanding anything to the contrary in this Agreement or in any other document governing the formation, provided, however, that none management or operation of the foregoing actions shall be consented Company, prior to unless there is at least one Independent taking any Material Action, the Members and the Manager then serving in such capacityshall, to the fullest extent permitted by law, including Section 18-1101(c) of the Delaware Act, take into account the interest of the Company’s creditors, as well as those of the Company.
(cd) The Board and the Member 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. During ; provided, however, that the existence 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 that the loss thereof is not disadvantageous in any material respect to the Company, the Board .
(e) The Manager also shall cause the Company at all times to and the Company shall:
(1) maintain its own separate books and records and bank accounts separate from those of any other Person;
(2) at all times hold itself out to the public as a legal entity separate from the Member, other Affiliates and any other Person;
(3) have its Board composed differently from that of the Member;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns, (b) not treated as a division (for tax purposes) of another taxpayer, or (c) not disregarded for tax purposes; and pay any taxes so required to be paid under applicable law;
(5) conduct its business in its own name;
(6) maintain financial statements separate from those of any other Person (except that the Company may also be listed on the financial statements of another Person where required by the accounting standards such Person is subject to);
(7) except for certain overhead and transaction costs that are allocated on a reasonable basis among the Company and certain of its Affiliates, pay its own liabilities from its own funds and pay the salaries of its own employees, if any;
(8) maintain an arm’s-length relationship with its Affiliates and the Member and any other parties furnishing services to the Company;
(9) participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods, or services provided to multiple entities;
(10) use stationery, invoices, wire transfers and checks (if applicable) bearing its own name separate from those of the Member or Affiliates;
(11) deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;
(12) observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;
(13) hold title to its assets in its own name;
(14) correct any known misunderstanding regarding its separate identity;
(15) maintain adequate capital and a sufficient number of employees in light of its contemplated business purpose, transactions and liabilities;
(16) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities; and
(17) cause the Directors, Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company. Failure of the Company, or the Member or Board 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 or the Directors.
(d) During the life of the Company, the Board shall not cause or permit the Company at any time to and the Company shall not:
(1) commingle its funds or other assets comply with those of any other Person;
(2) guarantee or become obligated for all the debts of any other entity or hold its credit as being available to satisfy the obligations of any other Person;
(3) pledge any of its assets for the benefit of any other Person, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(4) engage, directly or indirectly, in any business other than that arising out of the actions required or permitted to be performed under Section 2.1 or this Section 4.1;
(5) incur, create or assume any indebtedness, other than indebtedness with the sole recourse to assets of the Company, except that it may pledge one or more of the Permitted Holdings as security for “repo” or similar financing that provides for no recourse beyond the assets of the Company;
(6) make or permit to remain outstanding any loan or advance to any other Person;
(7) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such transfers as are conducted in connection with the deposit of mortgage loans into trust funds in accordance with Section 2.1(a);
(8) identify its Members or any of its Affiliates as a division or part of it or itself as a division or part of any of them (except for inclusion of the Company in consolidated financial statements in accordance with GAAP or for tax purposes);
(9) except for capital contributions and distributions permitted under the terms and conditions of the Company’s organizational documents and property reflected on the books and records of the Company, engage (either as transferor or transferee) in any material transaction with any Affiliate other than for fair value and on terms similar to those obtainable in arm’s-length transactions with unaffiliated parties, or engage in any transaction with any Affiliate involving any intent to hinder, delay or defraud any entity;
(10) engage in any business activity other than as stated requirements set forth in Section 2.1 of this Agreement; or
(11) own any asset or property other than (i) the Permitted Holding, and (ii) incidental personal property related to or arising from the ownership of the Permitted Holding9.01 hereof.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bluerock Residential Growth REIT, Inc.)
