Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect. (i) This Section 9(f) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity. (ii) The Primary Member shall not amend, modify, alter, supplement, change or repeal this Agreement without the prior written consent of the Special Member, which consent shall not be unreasonably withheld, conditioned or delayed. (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer or any other Person, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company to take any Material Action. (iv) The Primary 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. The Primary Member also shall cause the Company to: (A) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Company; (B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members and any other Person; (C) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division of another taxpayer for tax purposes, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith; (D) not commingle its assets with assets of any other Person and hold all its assets in its own name; (E) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence; (F) remain solvent and pay its own liabilities, losses or expenses only out of its own funds as the sums shall become due; (G) maintain an arm’s length relationship with its Affiliates and the Primary Member; (H) pay the salaries of its own employees, if any; (I) not hold out itself out as responsible for or have its credit or assets available to satisfy the debts or obligations of others; (J) allocate fairly and reasonably any overhead for shared office space; (K) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such items; (L) not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person; (M) correct any known misunderstanding regarding its separate identity; (N) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; (O) not acquire any securities of any Member; (P) not incur, create or assume any indebtedness; (Q) not make grant liens on, or security interests in, any assets of the Company; (R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person; (S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other); (T) cause the 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; (U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity; (V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”; (W) pay or bear the cost of the preparation of its financial statements; (X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds; (Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees; (Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses; (AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs; (BB) conduct its own business solely in its own name, through its duly authorized officers or agents; (CC) hold all of its assets in its own name; (DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other); (EE) not identify itself as a division or department of any other entity; (FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company; (GG) at all times have a Special Member; (HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and (II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise. (v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks: (A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement; (B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or (C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement. (vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to: (A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement; (B) amend the Certificate of Formation; (C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement; (D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate; (E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f); or (F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members. (vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.)
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f(i) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary Member shall not not, so long as any Obligation is outstanding, amend, modify, alter, supplement, change or repeal the definition of “Independent Director” or Section 5(c), Section 7, Section 8, Section 9, Section 10, Section 15, Section 17, Section 18, Section 19, Section 20, Section 21, Section 22, Section 23, Section 26, Section 28 or Schedule A of this Agreement without the prior unanimous written consent of the Special MemberBoard (including the Independent Director). Subject to this (i), which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 28.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer or any other Person, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer the Board nor the Manager nor any other Person shall be authorized or empowered, nor shall they permit the Company Company, without the prior unanimous written consent of the Member and the Board (including the Independent Director), to take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there is at least one Independent Director then serving in such capacity.
(iv) The Primary Member Board and the Manager shall cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if: (1) the Board determines 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. The Primary Member Board and the Manager also shall cause the Company to:
(A) maintain all of its own separate books and records accounts, financial statements and bank accounts separate from those of its Affiliates and maintain same any other Person in accordance with the SPE Master Custodial Agreement; provided, however, that the Company’s assets may be included in a manner so consolidated financial statement of its Affiliates provided that it will not (1) appropriate notation shall be difficult or costly made on such consolidated financial statements to segregate, ascertain or otherwise identify indicate the separateness of the Company and such Affiliates and to indicate that the Company’s assets and liabilities credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person and (2) such assets shall be listed on the Company’s own separate balance sheet;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members Member and any other Person;
(C) have a Board of Directors separate from that of the Member and any other Person;
(D) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer for tax purposestaxpayer, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(DE) except as contemplated by the Basic Documents, not commingle its assets with assets of any other Person and hold all its assets in its own namePerson;
(EF) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(FG) remain solvent and pay its own liabilities, losses or expenses liabilities only out of its own funds as the sums shall become duefunds;
(GH) maintain an arm’s length relationship only engage with its Affiliates and the Primary MemberMember upon terms and conditions that are commercially reasonable and substantially similar to those that would be available on an arms-length basis with unaffiliated third parties;
(HI) pay the salaries of its own employees, if any;
(IJ) not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of othersthe Member or its Affiliates;
(JK) allocate fairly and reasonably any overhead for shared office space;
(K) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such itemsif any;
(L) use separate invoices and checks, if any, except as contemplated by the consolidated billing statement contemplated under the SPE Master Custodial Agreement;
(M) except as contemplated by the Basic Documents, not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(MN) correct any known misunderstanding regarding its separate identity;
(NO) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, the foregoing shall not require the Member or any Affiliate to make any additional capital contributions to the Company;
(OP) keep minutes of any Board or Member meetings and actions and observe all other Delaware limited liability company formalities; and
(Q) not acquire any securities of any the Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets . Failure of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f); or
(F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members.
(vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant 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, the Manager or the Directors.
(v) So long as any Obligation is outstanding, the Board shall not cause or permit the Company to:
(A) except as contemplated by the Basic Documents, guarantee any obligation of any Person, including any Affiliate;
(B) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7, the Basic Documents or this (i);
(C) incur, create or assume any indebtedness other than as expressly permitted under the Basic Documents;
(D) 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 or loan required or expressly permitted or contemplated to be made pursuant to any provisions of the Basic Documents and permit the same to remain outstanding in accordance with such provisions;
(E) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, division, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Basic Documents; or
(F) form, acquire or hold any subsidiary (whether corporation, partnership, limited liability company or other).
Appears in 1 contract
Samples: Limited Liability Company Agreement
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f9(j) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” purpose entity.”
(ii) The Primary Member or the Special Member, if any, shall not not, so long as any Obligation is outstanding, amend, modify, alter, supplement, change or repeal the definition of “Independent Manager” or Sections 5(b), 7, 8, 9(a), 9(j), 9(k), 12, 24(c), or 30 or Schedule A of this Agreement without the prior unanimous written consent of the Special MemberManagers (including the Independent Manager(s)). Subject to this Section 9(j), which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 30.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer Special Member, any Manager or any other PersonOfficer, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer Special Member nor the Managers nor any other Person Officer shall be authorized or empowered, nor shall they permit the Company Company, without the prior unanimous written consent of each of (1) the Member and (2) the Managers (including the Independent Manager(s)), to take any Material Action; provided, however, that the 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.
(iv) The Primary Managers 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. The Primary Member also shall cause ; provided, however, that the Company to:
(A) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will shall not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Company;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members and any other Person;
(C) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division of another taxpayer for tax purposes, and pay any taxes so required to be paid under applicable law, but only to the extent that preserve any such taxes are not being contested in good faith;
(D) not commingle its assets with assets right or franchise if the Managers shall determine that the preservation thereof is no longer desirable for the conduct of any other Person and hold all its assets in its own name;
(E) conduct its business and that the loss thereof is not disadvantageous in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(F) remain solvent and pay its own liabilities, losses or expenses only out of its own funds as the sums shall become due;
(G) maintain an arm’s length relationship with its Affiliates and the Primary Member;
(H) pay the salaries of its own employees, if any;
(I) not hold out itself out as responsible for or have its credit or assets available to satisfy the debts or obligations of others;
(J) allocate fairly and reasonably any overhead for shared office space;
(K) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such items;
(L) not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(M) correct any known misunderstanding regarding its separate identity;
(N) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(O) not acquire any securities of any Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the Officers, agents and other representatives of the Company to act at all times with material respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretionSo long as any Obligation is outstanding, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member Managers shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in contemplated by the License Agreement;
(D) Transaction Documents, guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course)Person, including any Affiliate;
(EB) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 7, the Transaction Documents or this Section 9(f9(j);
(C) incur, create or assume any indebtedness other than as expressly permitted under the Transaction Documents;
(D) 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 Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions;
(E) to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Transaction Documents;
(F) except as otherwise as permitted by the Transaction Documents, form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other); or
(FG) take cause the Company to violate, or consent to or permit any other action expressly waiver of or departure from the requirements set forth in this Agreement as requiring the approval or consent of all of the Membersin, Section 12.
(vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (GNMAG Asset Backed Securitizations, LLC)
Limitations on the Company’s Activities. Notwithstanding anything herein or in the Basic Documents to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, any of the Primary MemberMembers, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary New Propco Member shall not amend, modify, alter, supplement, change or repeal Sections 1, 5(c), 7, 8, 9, 10, 14, 16, 19, 20, 21, 22, 23, 24, 28 or 29 or Schedule A of this Agreement without the prior unanimous written consent of all the Special Member, which consent shall not be unreasonably withheld, conditioned or delayedMembers.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, any of the Primary MemberMembers, any Officer or any other Person, without the prior written consent neither any of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company Company, without the prior unanimous written consent of all the Members, to take any Material Action.
(iv) The Primary New Propco 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, existence and shall use its best efforts to cause the Company to do or cause to be done all things necessary to preserve and keep in full force and effect its other rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the New Propco Member shall determine that the preservation thereof (x) is no longer desirable for the conduct of its business, at the discretion of the New Propco Member and that the loss thereof is not disadvantageous in any respect to the Company or (y) will not have a material adverse effect on the New Propco License Agreement and/or the New Opco License Agreements. The Primary New Propco Member also shall cause the Company to:
(A) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be materially difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Company;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from any of the Members and any other Person;
(C) file its own any tax returns, if any, as returns which the Company may be required under by applicable lawlaw to file, to the extent (1) not part separate from those of a consolidated group filing a consolidated return or returns or (2) not treated as a division of another taxpayer for tax purposesany other Person, and pay any taxes so required to be paid under applicable law, but only in each case solely to the extent that any such taxes are the Company is not being contested in good faithtreated as a disregarded entity for federal, state or local income tax purposes;
(D) not take any action, file any tax return or make any election inconsistent with the treatment of the Company, for purposes of federal taxes and, to the extent consistent with applicable law, state and local income and other tax purposes, as a disregarded entity that is not separate from the Members, including making an election under Section 301.7701-3(a) of the Treasury Regulations to be treated as an association taxable as a corporation for federal income tax purposes;
(E) not commingle its assets with assets of any other Person and hold all its assets in its own namePerson;
(EF) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(FG) remain solvent and pay its own liabilities, losses or expenses only out of its own funds as the sums shall become duefunds;
(GH) maintain an arm’s length relationship with its Affiliates and any of the Primary MemberMembers except as may be set forth in this Agreement, the New Opco License Agreements, the New Propco License Agreement or any other agreement approved by all of the Members;
(HI) pay the salaries of its own employees, if any;
(IJ) not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of others;
(JK) allocate fairly and reasonably any overhead for shared office space;
(KL) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such items;
(LM) not pledge its assets or secure its liabilities for to secure the benefit of any other Person or guarantee or become obligated for the debts obligations of any other Person;
(MN) correct any misunderstanding known misunderstanding to the New Propco Member regarding its the Company’s separate identity;
(NO) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(OP) not acquire any securities of any Member;
(P) not incur, create or assume any indebtednessof the Members;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person Person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(WS) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(YT) to the extent that Company and any other Person of its Affiliates share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(ZU) to the extent that Company and any Person of its Affiliates jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AAV) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Personits Affiliates, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EEW) not identify itself as a division or department of any other entity;
(FFX) cause instruct representatives, employees and agents of Company Company, if any, to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(IIY) not sell products or offer services hold all of its assets in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwiseits own name.
(v) Without the prior written consent of the Special Member in its sole discretionall Members, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary New Propco Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(EB) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 7, the Basic Documents or this Section 9(f);
(C) incur, create or assume any indebtedness;
(D) make grant liens on, or security interests in, any assets of the Company;
(E) make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(F) to the fullest extent permitted by law, engage in any action described in the definition of Material Action; or
(FG) take form, acquire or hold any other action expressly set forth in this Agreement as requiring the approval subsidiary (whether corporate, partnership, limited liability company or consent of all of the Membersother).
(vi) Failure of the Company or the Primary New Propco Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of any of the MemberMembers.
Appears in 1 contract
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f9(d) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary Member shall not not, so long as any Obligation is outstanding, amend, modify, alter, supplement, change or repeal the definition of “Independent Manager” or Sections 5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29, 31, 35, 36 or 37 or Schedule A of this Agreement without the prior unanimous written consent of the Special Member, which consent shall not be unreasonably withheldIndependent Manger and Lender. Subject to this Section 9(d), conditioned Member reserves the right to amend, alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer or any other Person, without the prior written consent of the Members in their sole discretionso long as any Obligation is outstanding, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company to to, and the Company shall not, without the prior written consent of the Member and the Independent Manager, take any Material Action; provided, however, that, so long as any Obligation is outstanding, the Member shall not authorize the taking of any Material Action unless there is at least one Independent Manager then serving in such capacity and such Independent Manager consents thereto.
(iv) The Primary 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. The Primary Member also shall cause Company represents, warrants and covenants that the Company toCompany:
(A) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Companyaccounts;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members Member and any other Person;
(C) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer for tax purposestaxpayer, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(D) except as contemplated by the Basic Documents, not commingle its assets with assets of any other Person and hold all its assets in its own namePerson;
(E) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(F) remain solvent and maintain separate financial statements;
(G) pay its own liabilities, losses or expenses liabilities only out of its own funds as the sums shall become duefunds;
(GH) maintain an arm’s length relationship with its Affiliates and the Primary Member;
(HI) pay the salaries of its own employees, if any;
(IJ) not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of others;
(JK) allocate fairly and reasonably any overhead for shared office space;
(KL) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such itemschecks;
(LM) except as contemplated by the Basic Documents, not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(MN) correct any known misunderstanding regarding its separate identity;
(NO) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(OP) not acquire any securities of any Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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; and;
(U) subject to clause (R) belowotherwise comply with the provisions set forth in Section 3.1.24, will maintain separate annual financial statements prepared in accordance Section 4.1.15 and Schedule III of the Loan Agreement. Failure of the Company, or Member on behalf of the Company, to comply with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those any of the foregoing covenants or any other person or entity;
(V) covenants contained in this Agreement shall not affect the event status of the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate legal entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretionSo long as any Obligation is outstanding, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in contemplated by the License Agreement;
(D) Basic Documents, guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course)Person, including any Affiliate;
(EB) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 7, the Basic Documents or this Section 9(f9(d);
(C) incur, create or assume any indebtedness other than as expressly permitted under the Basic Documents;
(D) 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 provisions of the Basic Documents and permit the same to remain outstanding in accordance with such provisions;
(1) to the fullest extent permitted by law, divide, dissolve, merge, liquidate, consolidate; (2) sell, transfer, dispose, or encumber (except in accordance with the Loan Documents) all or substantially all of its assets or properties or acquire all or substantially all of the assets or properties of any other Person; or (3) engage in any other business activity, or amend this Agreement or any of the Company’s other organizational or governing documents with respect to any of the matters set forth in Section 3.1.24, Section 4.1.15 and Schedule III of the Loan Agreement, without the prior consent of Lender; or
(F) take form, acquire or hold any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members.
subsidiary (vi) Failure of the Company or the Primary Memberwhether corporate, on behalf of the Companypartnership, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Membercompany or other).
Appears in 1 contract
Samples: Limited Liability Company Agreement (MacKenzie Realty Capital, Inc.)
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary Member shall not not, so long as any Obligation is outstanding, amend, modify, alter, supplement, change or repeal the definition of “Independent Manager” or Sections 5(d), 7, 8, 9, 10, 15, 18, 19, 20, 21, 22, 23, 24, 27 or 29 or Schedule A of this Agreement without the prior unanimous written consent of the Special MemberMember and the Independent Manager. Subject to this Section 9(f), which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 29.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer the Employee Company Manager, the Independent Manager or any other Person, without the prior written consent so long as any Obligation is outstanding, none of the Members in their sole discretionMember, (x) the Employee Company may not take any Material Action and (y) neither Manager, the Primary Member nor any Officer nor Independent Manager or any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member, the Employee Company Manager (if different from the Member), the majority of the Preferred Holders and the Independent Manager, to take any Material Action; provided, however, that, so long as any Obligation is outstanding, the 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.
(iv) The Primary Member and the Employee Company 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. The Primary Member and the Employee Company Manager also shall cause the Company to, except as contemplated by the Basic Documents:
(A) keep and maintain its own accurate and separate books and records and its own bank accounts and maintain same in a manner so that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Companyaccounts;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members Member and any other Person;
(C) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer for tax purposestaxpayer, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(D) not commingle its assets with assets of any other Person and hold all its assets in its own namePerson;
(E) conduct its business and hold its assets in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(F) remain solvent and maintain separate financial statements, provided that the foregoing shall not prohibit the Company from being included in consolidated financial statements of the Member or any direct or indirect parent of the Member where required by applicable accounting standards;
(G) pay its own liabilities, losses or expenses liabilities only out of its own funds as the sums shall become duefunds;
(GH) maintain an arm’s length relationship with its Affiliates and the Primary MemberMember (the Basic Documents being hereby deemed to satisfy such standard);
(HI) pay the salaries of its own employees, if any;
(IJ) not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of others;
(JK) allocate fairly and reasonably any overhead for shared office spacespace and pay or reimburse the cost thereof out of its own funds;
(KL) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such itemschecks;
(LM) not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(MN) correct any known misunderstanding regarding its separate identity;
(NO) maintain adequate capital 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;
(OP) observe all Delaware limited liability company formalities;
(Q) not acquire any securities of any the Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;; and
(R) not make or permit to remain outstanding cause any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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 foregoing; provided that the best interests failure of the Company;
(U) subject , or the Member or the Employee Company Manager on behalf of the Company, to clause (R) belowcomply 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 Employee Company Manager; and provided, will maintain separate annual financial statements prepared further, that the entering into and performance by the Company of the Basic Documents in accordance with generally accepted accounting principlesthe terms and conditions thereof shall not be deemed to have caused the Company to have violated, consistently appliedor to have failed to comply with, showing its assets and liabilities separate and distinct from those any of the foregoing covenants set forth in this Section 9(f)(iv) or any other person or entity;
(V) covenants contained in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwisethis Agreement.
(v) Without So long as any Obligation is outstanding, to the prior written consent of fullest extent permitted by law, neither the Special Member in its sole discretion, nor the Primary Member Employee Company Manager shall not cause or permit the Company toCompany, in each caseexcept as required, solely with respect to permitted or contemplated by the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letterBasic Documents, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course)Person, including any Affiliate;
(EB) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f);
(C) incur, create or assume any indebtedness (other than trade debt, wages, salaries, benefits and other indebtedness incurred in the ordinary course of business);
(D) make or permit to remain outstanding any loan or advance to or investment in, or own or acquire any stock or securities of, any Person;
(E) engage in any Material Action unless it has first obtained any approvals required under this Agreement; or
(F) take form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other) other action expressly set forth than in accordance with Section 7(i) of this Agreement as requiring the approval or consent of all of the Members.
(vi) Failure of the Company or the Primary MemberAgreement; provided, on behalf of that nothing herein shall restrict the Company’s ability to meet its obligations under any federal or state employment laws, to comply with any of the foregoing covenants rules or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Memberregulations.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuco2 Inc /De)
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f)1. Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f9(j) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose” " entity.
(ii) 2. The Primary Member shall not not, so long as any Obligation is outstanding, amend, modify, alter, supplement, change or repeal the definition of "Independent Director" or Sections 5(c), 7, 8, 9, 10, 16, 21, 22, 23, 24, 25, 26, 27, 31 or 32 or Schedule A of this Agreement without the prior unanimous written consent of the Special MemberBoard (including all Independent Directors). Subject to this Section 9(j), which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 32.
(iii) 3. Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, the Board, any Officer or any other Person, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor the Board nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company Company, without the prior unanimous written consent of the Member and the Board (including all Independent Directors), to take any Material Action, provided, however, that the Board may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Directors then serving in such capacity.
(iv) 4. The Primary 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: (1) 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 (2) the Rating Agency Condition is satisfied. The Primary Member Board also shall cause the Company to:
(A) : maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be difficult separate from the Member or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Company;
(B) any other person; at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members Member and any other Person;
(C) ; have a Board of Directors separate from that of the Member and any other Person; file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer for tax purposestaxpayer, and pay any taxes so required to be paid under applicable law; except as contemplated by the Transaction Documents, but only to the extent that any such taxes are not being contested in good faith;
(D) not commingle its assets with assets of the Member or any other Person and hold all its assets in its own name;
(E) Person; conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(F) remain solvent and ; maintain separate financial statements; pay its own liabilities, losses or expenses liabilities only out of its own funds as the sums shall become due;
(G) funds; maintain an arm’s 's length relationship with its Affiliates and the Primary Member;
(H) ; pay the salaries of its own employees, if any;
(I) ; not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of others;
(J) ; 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 for expenses shared office space;
(K) with any Affiliate, and not engage in any business transaction with any Affiliate unless on an arm's-length basis; use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to checks; except as contemplated by the extent it will use such items;
(L) Transaction Documents, not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee make any loans or become obligated for the debts of advances to any other Person;
(M) ; correct any known misunderstanding regarding its separate identity;
(N) ; maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(O) ; 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; not acquire any securities of any the Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) ; and 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;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f); or
(F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members.
(vi) . Failure of the Company Company, or the Primary Member, Member or Board on behalf of the Company, to comply with any of the foregoing covenants or any other covenant covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the MemberMember or the Directors.
5. So long as any Obligation is outstanding, the Board shall not cause or permit the Company to: except as contemplated by the Transaction Documents, guarantee or become obligated for the debts of any Person, including any Affiliate; engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7, the Transaction Documents or this Section 9(j); incur, create or assume any indebtedness other than as expressly permitted hereunder and under the Transaction Documents; 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 Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions; to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of the Transaction Documents; or except as contemplated by Section 7(a), form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bond Securitization LLC)
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary Member shall not amend, modify, alter, supplement, change or repeal this Agreement without the prior written consent of the Special Member, which consent shall not be unreasonably withheld, conditioned or delayed.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer or any other Person, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person shall be authorized or empowered, nor shall they permit the Company to take any Material Action.
(iv) The Primary 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. The Primary Member also shall cause the Company to:
(A) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Company;
(B) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members and any other Person;
(C) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division of another taxpayer for tax purposes, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(D) not commingle its assets with assets of any other Person and hold all its assets in its own name;
(E) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(F) remain solvent and pay its own liabilities, losses or expenses only out of its own funds as the sums shall become due;
(G) maintain an arm’s length relationship with its Affiliates and the Primary Member;
(H) pay the salaries of its own employees, if any;
(I) not hold out itself out as responsible for or have its credit or assets available to satisfy the debts or obligations of others;
(J) allocate fairly and reasonably any overhead for shared office space;
(K) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such items;
(L) not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(M) correct any known misunderstanding regarding its separate identity;
(N) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(O) not acquire any securities of any Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or 7or this Section 9(f); or
(F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members.
(vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Vivint Solar, Inc.)
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f9(d) is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose” entity.
(ii) The Primary Member Members shall not amend, modify, alter, supplement, change or repeal Sections 1, 5(b), 5(c), 7, 8, 9, 10, 15, 19, 20, 22, 23, 24, 25, 28, 29, 30, or 34 or Schedule A of this Agreement (collectively, the “Special Purpose Provisions”) without the prior unanimous written consent of the Special MemberIndependent Directors. Subject to this Section 9(d), which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayedrepeal any provisions contained in this Agreement in accordance with Section 30.
(iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary Member, any Officer Members or any other Person, without the prior written consent of neither the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person shall be authorized or empoweredempowered on behalf of the Company to, nor shall they permit the Company to to, and the Company shall not, without the prior unanimous written consent of the Class A Member and all Independent Directors take any Material Action with respect to the Company, provided, however, the Class A Member may not vote on, or authorize the taking of, any Material Action, unless there are at least two Independent Directors then serving in such capacity and each Independent Director has voted for or authorized the taking of such Material Action.
(iv) The Primary Class A 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, existence and its material rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such material right or franchise if the Class A Member 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 Primary Company shall, and the Member also shall cause the Company to:
(A) maintain be organized solely for the purpose set forth in Section 7(a) of this Agreement;
(B) not engage in any business unrelated to the acquisition, ownership, holding, pledging or management of the Interests;
(C) not have any assets other than those related to the Interests;
(D) not seek or consent to the fullest extent permitted by law any dissolution, winding up, liquidation, consolidation, merger, sale of all or substantially all of its own separate books assets or amendment of its certificate of formation or this Agreement with respect to the matters set forth in this Section 9(d);
(E) intend to remain solvent and records pay its debts and bank accounts liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, and maintain same adequate capital for the normal obligations reasonably foreseeable in a manner so business of its size and character and in light of its contemplated business operations; provided that it will this shall not be difficult or costly require the Members to segregate, ascertain or otherwise identify make additional capital contributions to the assets and liabilities Company;
(F) not fail to correct any known misunderstanding regarding the separate identity of the Company;
(BG) at all times hold itself out maintain its accounts, books and records separate from any other Person and file its own tax returns, except to the public and all other Persons extent that (i) it has been or is required to file consolidated tax returns by law or (ii) is treated as a legal entity separate “disregarded entity” for tax purposes and distinct from the Members is not required to file tax returns under applicable law;
(H) maintain its own records, books, resolutions and agreements;
(i) not commingle its funds or assets with those of any other Person and (ii) not participate in any cash management system with any other Person;
(CJ) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division of another taxpayer for tax purposes, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(D) not commingle its assets with assets of any other Person and hold all its assets in its own name;
(EK) conduct its business in its own name and strictly comply or in a name franchised or licensed to it by an entity other than an Affiliate of the Company, except for services rendered under a business management services agreement with all organizational formalities to maintain its separate existencean Affiliate that complies with the terms contained in Subsection (Z) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of the Company;
(FL) remain solvent maintain its financial statements, accounting records and other entity documents separate from any other Person and not permit its assets to be listed as assets on the financial statement of any other entity except as required by GAAP (or such other accounting basis acceptable to the Lender); provided, however, the Company’s assets may be included in a consolidated financial statement of its Affiliates; provided that (i) an appropriate notation shall be made on such consolidated financial statement to indicate the separateness of the Company from such Person and to indicate that the Company’s assets and liabilities are not available to satisfy the debts and other obligations of such Person or any other Person and (ii) such assets shall also be listed on the Company’s own separate balance sheet;
(M) pay its own liabilitiesliabilities and expenses, losses or expenses only out of its own funds as the sums shall become due;
(G) maintain an arm’s length relationship with its Affiliates and the Primary Member;
(H) pay including the salaries of its own employees, if anyout of its own funds and assets; provided, however, this provision shall not require the Members to make additional capital contributions to the Company;
(IN) maintain, or contract with an Affiliate to maintain, subject to the requirements of Subsection (Z) below, a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, this provision shall not hold out itself out as responsible for or have its credit or assets available require the Member to satisfy make additional capital contributions to the debts or obligations of othersCompany;
(JO) allocate fairly and reasonably any overhead for shared office spaceobserve all Delaware limited liability company formalities;
(KP) use separate stationeryhave no Indebtedness other than (i) the taxes, business cardsand (ii) unsecured trade payables and operational debt not evidenced by a note and in an aggregate amount not to exceed $200,000 that are the subject of a good faith dispute by the Company, purchase ordersin appropriate proceedings therefor, invoices and checks bearing its own name for which adequate reserves have been established by the Company); provided that any Indebtedness incurred pursuant to subclause (ii) shall be (A) paid within sixty (60) days of the extent it will use such itemsdate incurred (other than attorneys’ and other professional fees) and (B) incurred in the ordinary course of business;
(Li) not pledge its assets or secure its liabilities for the benefit of any other Person assume or guarantee or become obligated for the debts of any other Person, and (ii) not hold out its credit as being available to satisfy the obligations of any other Person;
(MR) correct other than the Interests, not acquire obligations or securities of its partners, members or shareholders or any known misunderstanding regarding its separate identityother Affiliate;
(NS) maintain adequate capital allocate, fairly and reasonably, any overhead expenses that are shared with any Affiliate, including, but not limited to, paying for shared office space and services performed by any employee of an Affiliate; provided, however, to the extent invoices for such services are not allocated and separately billed to each entity, there is a system in light of its contemplated business purpose, transactions and liabilitiesplace that provides that the amount thereof that is to be allocated among the relevant parties will be reasonably related to the services provided to each such party;
(OT) maintain and use separate stationery, invoices and checks bearing its name. The stationery, invoices, and checks utilized by the Company to collect its funds or pay its expenses shall bear its own name and shall not acquire any securities bear the name of any Memberother entity unless such entity is clearly designated as being the Company’s agent;
(PU) not incur, create or assume pledge its assets for the benefit of any indebtednessother Person;
(QV) hold itself out and identify itself as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of the Company and not make grant liens onas a division or part of any other Person, except for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in Subsection (Z) below, so long as the manager, or security interests inequivalent thereof, any assets under such business management services agreement holds itself out as an agent of the Company;
(RW) maintain its assets in such a manner that it will not make be costly or permit difficult to remain outstanding segregate, ascertain or identify its individual assets from those of any loan or advance to, or own or acquire any stock, indebtedness or securities of, any other Person;
(SX) not make loans to any Person or hold evidence of indebtedness issued by any other Person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
(Y) not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, and shall not identify itself as a division of any other Person;
(Z) except for capital contributions expressly permitted under the terms and conditions of the Company’s organizational documents and properly reflected in its books and records, not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except in the ordinary course of its business and on terms which are commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party,;
(AA) not have any of its obligations guaranteed by any Affiliate; and
(BB) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the Officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and or own any equity interests in furtherance of the foregoing and in the best interests of the Company;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f); or
(F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the MembersSubsidiary.
(vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 1 contract
Limitations on the Company’s Activities. Notwithstanding anything herein to the contrary, until the end of the Term, any and all actions by or on behalf of the Company, the Primary Member, any Officer or any other Person are subject to the limitations set forth in this Section 9(f). Any purported action by any Person in violation of this Section 9(f) shall be deemed null and void ab initio and of no force or effect.
(i) This Section 9(f) 9j is being adopted in order to comply with certain provisions required in order to qualify the Company as a “"special purpose” purpose entity" for the purpose of the Indebtedness.
(ii) The Primary Member shall not not, so long as any Indebtedness is outstanding, amend, modify, alter, supplement, change or repeal the definition of "Independent Director" or Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26 or 31 or Schedule A of ---------- this Agreement without the prior unanimous written consent of the Special MemberBoard (including the Independent Director). Subject to this Section 9j, which consent shall not be unreasonably withheldthe Member reserves the right to amend, conditioned alter, change or delayed.
repeal any provisions contained in this Agreement in accordance with Section 31. (iii) Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Primary MemberMember or the Board, any Officer or any other Person, without the prior written consent of the Members in their sole discretion, (x) the Company may not take any Material Action and (y) neither the Primary Member nor any Officer nor any other Person the Board shall be authorized or empowered, nor shall they permit the Company Company, without the prior unanimous written consent of the Member and the Board (including the Independent Director), to take any Material Action; provided, however, that the foregoing is subject in all cases -------- ------- to Section 843(e) of the Statute.
(iv) The Primary Unless otherwise provided in the Note Issuance Documents, so long as any Indebtedness is outstanding, 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. The Primary Member also shall cause ; provided, however, that the Company to:-------- -------
(A1) maintain its own separate books and records and bank accounts and maintain same in a manner so that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of the Companyaccounts;
(B2) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from the Members Member and any other Person;
(C3) have a Board composed differently from that of the Member and any other Person;
(4) file its own tax returns, if any, as may be required under applicable law, to the extent (1a) not part of a consolidated group filing a consolidated return or returns or (2b) not treated as a division for tax purposes of another taxpayer for tax purposestaxpayer, and pay any taxes so required to be paid under applicable law, but only to the extent that any such taxes are not being contested in good faith;
(D5) not commingle its assets with assets of any other Person and hold all (except as contemplated by the Basic Documents);
(6) conduct its assets business in its own name;
(E7) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existencefinancial statements;
(F) remain solvent and 8) pay its own liabilities, losses or expenses liabilities only out of its own funds as the sums shall become duefunds;
(G9) maintain an arm’s 's length relationship with its Affiliates and the Primary its Member;
(H10) pay the salaries of its own employees, if any;
(I11) not hold out itself out as responsible for or have its credit or assets as being available to satisfy the debts or obligations of others;
(J12) allocate fairly and reasonably any overhead for shared office space;
(K13) use separate stationery, business cards, purchase orders, invoices and checks bearing its own name to the extent it will use such itemschecks;
(L14) not pledge its assets or secure its liabilities for the benefit of any other Person or guarantee or become obligated for the debts of any other Person;
(M15) correct any known misunderstanding regarding its separate identity;
(N16) maintain adequate capital in light of its contemplated business purpose, transactions and liabilitiespurposes;
(O17) 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
(18) not acquire any obligations or securities of any Member;
(P) not incur, create or assume any indebtedness;
(Q) not make grant liens on, or security interests in, any assets of the Company;
(R) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock, indebtedness or securities of, any Person;
(S) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(T) cause the 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;
(U) subject to clause (R) below, will maintain separate annual financial statements prepared in accordance with generally accepted accounting principles, consistently applied, showing its assets and liabilities separate and distinct from those of any other person or entity;
(V) in the event the financial statements of Company are consolidated with the financial statements of any other entity, then in addition to maintaining separate financial statements as required above, cause to be included in such consolidated financial statements a note, in effect, stating that “Company is a separate entity that has separate assets and liabilities as shown on Company separate financial statements”;
(W) pay or bear the cost of the preparation of its financial statements;
(X) maintain a sufficient number of employees or outside consultants in light of its contemplated business operations and pay their salaries out of its own funds;
(Y) to the extent that Company and any other Person share the same officers and other employees, allocate fairly, appropriately and nonarbitrarily any salaries and expenses to the extent actually incurred by such parties related to providing benefits to such officers and other employees between or among such entities, with the result that each such entity will bear its fair share of the salary and benefit costs associated with all such common or shared officers or other employees;
(Z) to the extent that Company and any Person jointly contract or do business with vendors or service providers or share overhead expenses, allocate fairly, appropriately and nonarbitrarily any costs and expenses incurred in so doing between or among such entities, with the result that each such entity bears its fair share of all such costs and expenses;
(AA) to the extent Company contracts or does business with vendors or service providers where the goods or services are wholly or partially for the benefit of another Person, allocate fairly, appropriately and nonarbitrarily any costs incurred in so doing to the entity for whose benefit such goods or services are provided, with the result that each such entity bears its fair share of all such costs;
(BB) conduct its own business solely in its own name, through its duly authorized officers or agents;
(CC) hold all of its assets in its own name;
(DD) not form, acquire or hold any subsidiary (whether corporate, partnership, limited liability company or other);
(EE) not identify itself as a division or department of any other entity;
(FF) cause representatives, employees and agents of Company to hold themselves out to third parties as being representatives, employees or agents, as the case may be, of Company;
(GG) at all times have a Special Member;
(HH) take all steps necessary to maintain, prosecute and renew all registrations and applications for the Marks in the field of the Vivint Solar Business, including paying all costs and expenses associated with all applications and registrations for such Marks; and
(II) not sell products or offer services in commerce or advertise, market or promote that it is doing same, whether under the Marks or otherwise.
(v) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to, in each case, solely with respect to the Marks:
(A) instigate any investigation or send any third party a “cease-and-desist” letter, notice of infringement or the like, or institute or settle a dispute, proceeding or litigation against any third party other than as specifically provided in the License Agreement;
(B) file any trademark, copyright or domain name registration applications, or take any action with respect to any existing trademark, copyright or domain name registration applications other than as specifically provided in the License Agreement; or
(C) file any lawsuit or proceeding against a third party other than as specifically provided in the License Agreement.
(vi) Without the prior written consent of the Special Member in its sole discretion, the Primary Member shall not cause or permit the Company to:
(A) authorize any Officer to take any action which would otherwise require a unanimous vote or consent of the Members pursuant to this Agreement;
(B) amend the Certificate of Formation;
(C) sell, transfer, license or otherwise dispose of the Marks, except as permitted in the License Agreement;
(D) guarantee or assume any obligation of any Person (excluding the endorsement of checks in the ordinary course), including any Affiliate;
(E) engage, directly or indirectly, in any business other than the actions required or permitted to be performed under Section 7 or this Section 9(f); or
(F) take any other action expressly set forth in this Agreement as requiring the approval or consent of all of the Members.
(vi) Failure of the Company or the Primary Member, on behalf of the Company, to comply with any of the foregoing covenants or any other covenant contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Sdg&e Funding LLC a De Limited Liability Co)
