Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall: (i) maintain its limited liability company existence, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person; (ii) maintain its assets in a manner which facilitates their identification and segregation from those of any of the other Affiliated Entities; (iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties; (iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity; (v) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity; (vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access; (vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower; (viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered; (ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower; (x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity; (xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet; (xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it; (xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and (xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Appears in 1 contract
Samples: Credit Agreement (Sunnova Energy International Inc.)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonIssuers will, and that it is not a division of any of will cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallTransaction Documents:
(i) maintain separate deposit and securities accounts, as applicable, or other accounts, from those of any of its limited liability company existenceAffiliates (other than each other), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than each other), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonTransaction Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than each other), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the other Affiliated Entitiestransactions contemplated in the Transaction Documents meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions its business from an office at a separate address from any of its Affiliates (other than the Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii); and to the extent that any Securitization Entity and any of its members or enter into any contract or agreement with Affiliates (other than the other Affiliated Entities except upon terms and conditions that are intrinsically Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) provide separate financial statements as required by Section 4.1(e);
(v) conduct its business in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company formalities, including holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access);
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers on its board of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedmanagers;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountcause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of any proposed removal of such Independent Manager, directly from together with a certification that such replacement satisfies the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent requirements for an Independent Manager set forth in the Charter Documents of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated applicable Securitization Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder, written notice of the identity and contact information for each Independent Manager upon obtaining Actual Knowledge and at any time that such information has changed from any the information set forth in the relevant Charter Document.
(b) Each of the Issuers, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to such Issuer referenced in the opinion of Xxxxx Day regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat such Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with its Charter Documents and any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
Samples: Base Indenture (SPRINT Corp)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain their own deposit and securities account, as applicable, or accounts, separate from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the other Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to the Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non-Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arms-length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entitiesapplicable Securitization Entity; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder, written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to the Master Issuer referenced in the opinion of Ropes & Xxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Master Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
Maintenance of Separate Existence. The Borrower shall take Do all reasonable steps things necessary to continue maintain its identity as a corporate existence separate legal entity and to make it apparent to third Persons that it is an entity with assets apart from each Originator and liabilities distinct from those all other Affiliates of the Affiliated Entities or any other PersonSeller, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shallincluding, without limitation:
(i) maintain its limited liability company existencemaintaining at least one independent director who (x) is not currently and has not been during the five years preceding the date of this Agreement an officer, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Persondirector, or dissolveemployee of any Originator or any of their Affiliates, terminate(y) is not a current or former officer, liquidate in whole director or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms employee of the limited liability company agreement Seller and (z) is not a stockholder or member of the Borrower, not be controlled in making such decisions by any other Affiliated Entity Originator or any other Personof their Affiliates;
(ii) maintain conducting its assets in a manner which facilitates their identification and segregation business from an office separate from those of each Originator and its Affiliates (but which may be located in the same facility as such Originator or any of the other Affiliated Entitiesits Affiliates);
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the having stationery and other Affiliated Entities except upon terms business forms and conditions that are intrinsically fair a telephone number separate from those of each Originator and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesits Affiliates;
(iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any being at all times adequately capitalized in light of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entitycontemplated business;
(v) providing at all times for its own operating expenses and liabilities from its own funds, except as expressly otherwise permitted hereunder to the extent that the Seller, on the one hand, and PolyOne or contemplated under any of its Affiliates, on the other Transaction Documentshand, share overhead expenses, the SAP Financing Documentscosts and expenses incurred in so doing will be fairly and nonarbitrarily allocated between or among such entities, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets result that each such entity bears its fair share of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;all such costs and expenses.
(vi) maintain maintaining its assets, funds and transactions separately from those of each Originator and its Affiliates, reflecting such assets and transactions in financial statements separate deposit and other bank accounts to which no other Affiliated Entity has any accessdistinct from those of each Originator and its Affiliates, and evidencing such assets and transactions by appropriate entries in books and records separate and distinct from those of each Originator and its Affiliates;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold holding itself out to the public under the Seller's own name as a legal entity separate and distinct from any other Affiliated Entityeach Originator and its Affiliates;
(viii) holding regular duly noticed meetings or obtaining such appropriate consents of its Board of Directors, and correct making and retaining minutes of such meetings as are necessary or appropriate to authorize all of the Seller's corporate actions required by law to be authorized by its Board of Directors;
(ix) not engaging in any known misunderstanding regarding transaction with any Originator or any of its separate identityAffiliates, except as permitted by this Agreement and as contemplated by the Receivables Contribution and Sale Agreement;
(x) not maintaining any joint account with any Originator or any of its Affiliates or becoming liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Originator or any of its Affiliates;
(xi) maintain a sufficient number not directing or participating in the management of employees in light any Originator or any of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operationsAffiliates;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all not making any payment or distribution of assets with respect to any obligation of any Originator or any of its books, records, financial statements and bank accounts separate from those Affiliates or granting an Adverse Claim on any of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement secure any obligation of such Originator or any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheetAffiliates;
(xiii) except as provided in the limited liability company agreement not making loans or advances or otherwise extending credit to any Originator or any of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of itAffiliates;
(xiv) file not holding itself out as having agreed to pay, or as being liable (primarily or secondarily) for, any obligations of any Originator or any of its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities)Affiliates; and
(xv) otherwise practice taking and adhere continuing to corporate formalities such take all actions, described in the assumptions as complying with its organizational documents to facts set forth in, and member and Facility Administrator resolutionsforming the basis of, the holding opinion of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from Thompson Hine LLP delivered pursuant to Section 3.01(m)(iii) xxx xxsxxxxted as Exhibit I-3 to this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedAgreement.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shallIssuer will:
(i) maintain its limited liability company existenceown deposit and securities account, make independent decisions as applicable, or accounts, separate from those of any of its Affiliates, with respect commercial banking institutions and ensure that the funds will not be diverted to its daily operations and business affairsany Person who is not a the Issuer or for other than the use of the Issuer, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, Affiliates other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonTransaction Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the other Affiliated Entitiestransactions contemplated in the Transaction Documents meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that the Issuer and any of its Affiliates have offices in the same location, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms fairly and conditions that are intrinsically appropriately allocate overhead costs among them, and each such entity shall bear its fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesshare of such expenses;
(iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have (A) issue separate financial statements from any of its obligations assumed or guaranteed by any other Affiliated EntityAffiliates prepared at least quarterly and prepared in accordance with GAAP and (B) file its own tax returns, pledge its assets for the benefit of any other Affiliated Entityif any, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated may be required under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entitiesapplicable law, to the extent applicablenot part of a consolidated group filing a consolidated return or returns and not treated as a division or a disregarded entity for tax purposes of another taxpayer, for services and pay any U.S. federal and material state and local taxes required to be paid by it under applicable law, except as otherwise expressly provided to in the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the BorrowerTransaction Documents;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(xA) conduct its business (whether in writing or orally) solely affairs in its own name through and in accordance with its duly authorized officersCharter Documents and observe all necessary, employees appropriate and agentscustomary limited liability company or corporate formalities (as applicable), including including, but not limited to, holding all regular and special meetings appropriate to authorize all of its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts, (B) hold all of the Facility Administratorits assets in its own name and in such a manner that it will not be costly or difficult to segregate, ascertain or identify its assets from those of any other Affiliate or any other Person and (C) be, and at all times hold itself out to the public as as, a legal entity separate and distinct from any other Affiliated EntityPerson and, and to the extent known by it, correct any known misunderstanding regarding its separate identity;
(xivi) maintain a sufficient number (A) not assume or guarantee any of employees in light the liabilities of any other Person, become obligated for the debts of any other Person or hold out its contemplated business operationscredit as being available to pay the obligations of any other Person, (B) remain solvent and pay its debts and liabilities from its assets as the same become due, and maintain adequate capital (C) except as arising under or expressly permitted by the Transaction Documents, not incur, create or assume any Indebtedness and not make any loans or advances to, or pledge its assets for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operationsbenefit of, any other Person or entity;
(xiivii) maintain its bookstake, recordsor refrain from taking, resolutions and agreements as official recordsthe case may be, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets actions that are necessary to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may taken or not to be included taken in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on order to comply in all material respects with those procedures described in such consolidated financial statements provisions which are applicable to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheetit;
(xiiiviii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations maintain at least one Independent Manager or securities of any other Affiliated Entities, or identify its members or the other Affiliated EntitiesIndependent Director, as applicable, on its board of managers or its board of directors, as a division or part of itthe case may be;
(xivix) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the fullest extent required and/or permitted by Applicable Lawlaw, provided thatso long as any Obligation remains outstanding, there shall be an appropriate notation indicating remove any Independent Manager or Independent Director only for Cause and only after providing the separate existence Trustee and the Controlling Class Representative with no less than five (5) days’ prior written notice of (A) any proposed removal of such Independent Manager or Independent Director, as applicable, and (B) the identity of the Borrower and its assets and liabilities)proposed replacement Independent Manager or Independent Director, as applicable, together with a certification that such replacement satisfies the requirements for an Independent Manager or an Independent Director set forth in the Charter Documents of the Issuer; and
(xvx) otherwise practice (A) provide, or cause the Manager to provide, to the Trustee and adhere the Controlling Class Representative, a copy of the executed agreement with respect to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those appointment of any other Affiliated Entityreplacement Independent Director or Independent Manager, as the case may be, and maintaining complete (B) provide, or cause the Manager to provide, to the Trustee and the Controlling Class Representative, written notice of the identity and contact information for each Independent Director or Independent Manager, as applicable, on an annual basis and at any time such information changes.
(b) The Issuer confirms that the statements relating to the Issuer referenced in the opinion of Kxxxxx Xxxxxx Rxxxxxxx LLP regarding substantive consolidation matters delivered to the Trustee on the most recent Series Closing Date are true and correct books with respect to itself, and records that the Issuer will comply with any covenants or obligations assumed to be complied with by it therein as if such covenants and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedobligations were set forth herein.
Appears in 1 contract
Samples: Base Indenture (Fat Brands, Inc)
Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is Transferor will not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall:
(i) fail to do all things necessary to maintain its limited liability company existenceexistence as a corporation separate and apart from W-P Steel and any Affiliate of W-P Steel, make and any Affiliate of the Transferor including, without limitation, conducting business correspondence in its own name, holding regular meetings of, or obtaining regular written consents from, its shareholders and Board of Directors and maintaining appropriate books and records; (ii) suffer any limitation on the authority of its own directors and officers to conduct its business and affairs in accordance with their independent decisions business judgment, or authorize or suffer any Person other than its own directors and officers to act on its behalf with respect to its daily operations matters (other than matters customarily delegated to others under powers of attorney) for which a corporation's own directors and business affairs, not amend, modify, terminate or officers would customarily be responsible; (iii) fail to comply with (A) maintain or cause to be maintained by an agent of the provisions Transferor under the Transferor's control physical possession of all its books and records, (B) maintain capitalization adequate for the conduct of its organizational documentsbusiness, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of (C) account for and manage its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation liabilities separately from those of any of the other Affiliated Entities;
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
(iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilitiesPerson, including, without limitation, for accounting and payment of all payroll services, rent, lease and other administrative expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in taxes from its own name through its duly authorized officersassets, employees (D) segregate and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain identify separately all of its books, records, financial statements and bank accounts separate assets from those of any other Affiliated EntityPerson, and shall not permit (E) maintain offices through which its assets to be listed on the financial statement business is conducted separate from those of W-P Steel and any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement Affiliates of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower W-P Steel and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement Affiliates of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
Transferor (xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax returnprovided that, to the extent required and/or permitted by Applicable Law, provided thatthat the Transferor and any of its Affiliates have offices in the same location, there shall be an a fair and appropriate notation indicating the separate existence allocation of overhead costs and expenses among them, and each such entity shall bear its fair share of such costs and expenses); (iv) commingle its funds with those of W-P Steel and or any Affiliate of W-P Steel or any Affiliates of the Borrower Transferor, or use its funds for other than the Transferor's uses; PROVIDED, HOWEVER, that collections on certain accounts receivable belonging to W-P Steel may from time to time be deposited into the Wheeling-Pittsburgh Collection Accounts or the Concentration Account; (v) fail to (A) maintain the Transferor's books, financial statements, accounting records and its assets and liabilities); and
(xv) otherwise practice and adhere to other corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks records separate from those of W-P Steel or any other Affiliated Entityentity, (B) act solely in its corporate name and maintaining complete through its own authorized officers and correct books agents, (C) make investments directly or by brokers engaged and records paid by the Transferor or its agents (provided that if any such agent is an Affiliate of the Transferor it shall be compensated at a fair market rate for its services), (D) separately manage the Transferor's liabilities from those of W-P Steel or any Affiliates of W-P Steel and minutes pay its own liabilities, including all administrative expenses, from its own separate assets, except that W-P Steel may pay the organizational expenses of meetings the Transferor, (E) pay from the Transferor's assets all obligations and other proceedings indebtedness of its members any kind incurred by the Transferor and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both (F) abide by all corporate formalities, including the maintenance of current minute books; (vi) not material assume the liabilities of W-P Steel or any Affiliate of W-P Steel; and would likely cause harm to (vii) not guarantee the company if publicly disclosedliabilities of W-P Steel or any Affiliate of W-P Steel.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wheeling Pittsburgh Corp /De/)
Maintenance of Separate Existence. The Borrower shall take Do all reasonable steps things necessary to continue maintain its identity as a existence separate legal entity and to make it apparent to third Persons that it is an entity with assets apart from each Originator and liabilities distinct from those other Affiliates of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall:
(i) maintain its limited liability company existence, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation from those of any of the other Affiliated Entities;
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
(iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilitiesSeller, including, without limitation, (i) maintaining proper limited liability company records and books of account separate from those of such Affiliates; (ii) maintaining its assets, funds and transactions separate from those of such Affiliates, reflecting such assets, funds and transactions in financial statements separate and distinct from those of such Affiliates, and evidencing such assets, funds and transactions by appropriate entries in the records and books referred to in clause (i) above, and providing for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or own operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in and liabilities from its own name through assets and funds (including a reasonable allocation for shared office space); (iii) holding such appropriate meetings or obtaining such appropriate consents of its duly Board of Managers as are necessary to authorize all the Seller’s actions required by law to be authorized officersby its Board of Managers, employees keeping minutes of such meetings and agents, including the Facility Administrator, hold of meetings of its members and observing all other necessary organizational formalities (and any successor Seller shall observe similar procedures in accordance with its governing documents and applicable law); (iv) at all times entering into its contracts and otherwise holding itself out to the public under the Seller’s own name as a legal entity separate and distinct from such Affiliates; (v) conducting all transactions and dealings between the Seller and such Affiliates on an arm’s-length basis; (vi) paying its own debts, liabilities and expenses (including overhead expenses, if any) only out of its own assets as the same shall become due; (vii) refraining from (A) guaranteeing, becoming obligated for or holding itself or its credit out to be responsible for or available to satisfy, the debts or obligations of any other Affiliated EntityPerson, (B) acting with the intent to hinder, delay or defraud any of its creditors in violation of applicable law, (C) acquiring any securities or debt instruments of its Affiliates or any other Person, and correct (D) making loans or advances, or transferring its assets, to any known misunderstanding regarding its separate identity;
Person, except to the extent permitted by the Transaction Documents; (xiviii) maintain a sufficient number of employees maintaining adequate capital in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (iiix) such assets shall be listed on the Borrower’s own using separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationerystationary, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedchecks.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Fidelity National Information Services, Inc.)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those IssuerEach of the Affiliated Entities or any other PersonCo-Issuers will, and that it is not a division of any of will cause each other Securitization Entity to, except as otherwise expressly contemplated by the Affiliated Entities or any other Person. In that regard the Borrower shallTransaction Documents:
(i) maintain its limited liability company existenceown deposit and securities account or accounts, make independent decisions separate from those of any of its Affiliates (other than the other Securitization Entities, Take 5 Oil and Take 5) (such Affiliates, the “Non-Securitization Affiliates”), with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, Non-Securitization Affiliates other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonTransaction Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Non-Securitization Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the other Affiliated Entitiestransactions contemplated in the Transaction Documents and the transactions described in the proviso to the following clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, (x) conduct all intercompany transactions its business from an office at a separate address from that of any of its Non-Securitization Affiliates; provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii); or enter into (y) to the extent that it has a shared office with any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically Non-Securitization Affiliate, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue separate financial statements from all of its Non-Securitization Affiliates prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company, partnership or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all of its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Non-Securitization Affiliates; provided that the other Affiliated EntitiesSecuritization Entities may, nor have pursuant to any Letter of its Credit Reimbursement Agreement, cause letters of credit to be issued pursuant to the Class A-1 Note Purchase Agreements that are for the sole benefit of one or more Non-Securitization Entities if the Issuerin the United States or Canada, as applicable, if the applicable Co-Issuer receives a fee from each Non-Securitization Entity whose obligations assumed or guaranteed are secured by any other Affiliated Entity, pledge its assets for the benefit such letter of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Issuersuch Co-Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arm’s length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed maintain at least two (2) Independent Managers on its board of managers or board of directors, as the case may be, and with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm respect to the company if publicly disclosed. and auditing expensesCanadian Securitization Entities, one (1) on the basis of actual use or the value of services rendered, and otherwise on whom is a basis reasonably related to actual use or the value of services renderedCanadian resident;
(ix) pay to the fullest extent permitted by law, so long as any Notes remain Outstanding, remove or replace any Independent Manager only for its own account, directly from Cause and only after providing the Borrower’s own funds or indirectly through documented capital contributions from Parent or Trustee and the Control Party with at least five (5) days’ prior written notice of (A) any other direct or indirect parent proposed removal of such Independent Manager and (B) the identity of the Borrowerproposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements for an Independent Manager set forth in its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated EntitiesCharter Documents; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the applicable Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the applicable Manager to provide, to the Trustee, the Control Party and each Noteholder written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Issuer, on behalf of itself and each of the other Affiliated U.S. Securitization Entities, confirms that the statements relating to the Issuer referenced in the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date or such other date when the related assets for such Driven Securitization Brand were contributed to the U.S. Securitization Entities pursuant to a Contribution Agreement are true and correct with respect to itself and each other U.S. Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Issuer will, and maintain adequate capital will cause each other U.S. Securitization Entity to, comply with any covenants or obligations assumed to be complied with by it therein as if such covenants and obligations were set forth herein. in accordance with Section 8.24(a)(vii). The Canadian Co-Issuer, on behalf of itself and each of the other Canadian Securitization Entities, confirms that the statements relating to the Canadian Co-Issuer referenced in the opinion of Blake, Xxxxxxx & Xxxxxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date (beginning with the Series 2020-1 Closing Date) or such other date when the related assets for such Driven Securitization Brand were contributed to the normal obligations reasonably foreseeable in Canadian Securitization Entities pursuant to a business of its size Contribution Agreement are true and character correct with respect to itself and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any each other Affiliated Canadian Securitization Entity, and shall not permit its assets that the Canadian Co-Issuer will, and will cause each other Canadian Securitization Entity to, comply with any covenants or obligations assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included complied with by it therein as if such covenants and obligations were set forth herein in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilitiesaccordance with Section 8.24(a)(vii); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Appears in 1 contract
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain their own deposit and securities accounts, as applicable, separate from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the other Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue, as required, separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to a Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non- Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arm’s length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated applicable Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xvA) otherwise practice provide, or cause the Manager to provide, to the Trustee and adhere the Control Party, a copy of the executed agreement with respect to corporate formalities such as complying with its organizational documents the appointment of any replacement Independent Manager and member and Facility Administrator resolutions(B) provide, or cause the Manager to provide, to the Trustee, the holding Control Party and each Holder, written notice of regularly scheduled meetings the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of members itself and Facility Administratoreach of the other Securitization Entities, use stationery, invoices confirms that the statements relating to the Master Issuer referenced in the opinion of Ropes & Xxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and checks separate from those of any correct with respect to itself and each other Affiliated Securitization Entity, and maintaining complete that the Master Issuer will, and correct books will cause each other Securitization Entity to, comply with any covenants or obligations assumed to be complied with by it therein as if such covenants and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedobligations were set forth herein.
Appears in 1 contract
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain their own deposit and securities account, as applicable, or accounts, separate from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the other Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to the Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non-Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arms-length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entitiesapplicable Securitization Entity; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder, written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to the Master Issuer referenced in the opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Master Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
Samples: Base Indenture (Wendy's Co)
Maintenance of Separate Existence. The Borrower shall take Do all reasonable steps things necessary to continue maintain its identity as a corporate existence separate legal entity and to make it apparent to third Persons that it is an entity with assets apart from each Originator and liabilities distinct from those all other Affiliates of the Affiliated Entities or any other PersonSeller, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shallincluding, without limitation:
(i) maintain its limited liability company existencemaintaining at least one independent director who (x) is not currently and has not been during the five years preceding the date of this Agreement an officer, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Persondirector, or dissolveemployee of any Originator or any of their Affiliates, terminate(y) is not a current or former officer, liquidate in whole director or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms employee of the limited liability company agreement Seller and (z) is not a stockholder or member of the Borrower, not be controlled in making such decisions by any other Affiliated Entity Originator or any other Personof their Affiliates;
(ii) maintain conducting its assets in a manner which facilitates their identification and segregation business from an office separate from those of each Originator and its Affiliates (but which may be located in the same facility as such Originator or any of the other Affiliated Entitiesits Affiliates);
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the having stationery and other Affiliated Entities except upon terms business forms and conditions that are intrinsically fair a telephone number separate from those of each Originator and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesits Affiliates;
(iv) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any being at all times adequately capitalized in light of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entitycontemplated business;
(v) providing at all times for its own operating expenses and liabilities from its own funds, except as expressly otherwise permitted hereunder to the extent that the Seller, on the one hand, and PolyOne or contemplated under any of its Affiliates, on the other Transaction Documentshand, share overhead expenses, the SAP Financing Documentscosts and expenses incurred in so doing will be fairly and nonarbitrarily allocated between or among such entities, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets result that each such entity bears its fair share of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;all such costs and expenses.
(vi) maintain maintaining its assets, funds and transactions separately from those of each Originator and its Affiliates, reflecting such assets and transactions in financial statements separate deposit and other bank accounts to which no other Affiliated Entity has any accessdistinct from those of each Originator and its Affiliates, and evidencing such assets and transactions by appropriate entries in books and records separate and distinct from those of each Originator and its Affiliates;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold holding itself out to the public under the Seller's own name as a legal entity separate and distinct from any other Affiliated Entityeach Originator and its Affiliates;
(viii) holding regular duly noticed meetings or obtaining such appropriate consents of its Board of Directors, and correct making and retaining minutes of such meetings as are necessary or appropriate to authorize all of the Seller's corporate actions required by law to be authorized by its Board of Directors;
(ix) not engaging in any known misunderstanding regarding transaction with any Originator or any of its separate identityAffiliates, except as permitted by this Agreement and as contemplated by the Receivables Contribution and Sale Agreement;
(x) not maintaining any joint account with any Originator or any of its Affiliates or becoming liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Originator or any of its Affiliates;
(xi) maintain a sufficient number not directing or participating in the management of employees in light any Originator or any of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operationsAffiliates;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all not making any payment or distribution of assets with respect to any obligation of any Originator or any of its books, records, financial statements and bank accounts separate from those Affiliates or granting an Adverse Claim on any of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement secure any obligation of such Originator or any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheetAffiliates;
(xiii) except as provided in the limited liability company agreement not making loans or advances or otherwise extending credit to any Originator or any of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of itAffiliates;
(xiv) file not holding itself out as having agreed to pay, or as being liable (primarily or secondarily) for, any obligations of any Originator or any of its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities)Affiliates; and
(xv) otherwise practice taking and adhere continuing to corporate formalities such take all actions, described in the assumptions as complying with its organizational documents to facts set forth in, and member and Facility Administrator resolutionsforming the basis of, the holding opinion of regularly scheduled meetings of members Xxxxxxxx Xxxx LLP delivered pursuant to Section 3.01(m)(iii) and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from designated as Exhibit I-3 to this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedAgreement.
Appears in 1 contract
Samples: Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower HVF III shall:
(ia) maintain its limited liability company existenceown deposit account or accounts, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of HVF III will not be diverted to any other Person or for other than the use of HVF III, nor will such funds be commingled with the funds of Hertz or any other Affiliated EntitiesSubsidiary or Affiliate of Hertz other than as provided in the Related Documents;
(iiib) except as expressly otherwise permitted hereunderensure that all transactions between HVF III and any of its Affiliates, conduct all intercompany transactions whether currently existing or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would hereafter entered into, shall be available only on an arm’s length basis with unaffiliated third partiesbasis, it being understood and agreed that the transactions contemplated in the Related Documents meet the requirements of this clause (b);
(ivc) to the extent that it requires an office to conduct its business, conduct its business from an office at a separate address from that of Hertz and its Affiliates (other than Hertz Vehicles LLC or any other affiliated special purpose company (other than HGI)); provided, that segregated offices in the same building shall constitute separate addresses for purposes of this clause (c). To the extent that HVF III and any of its members or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(d) conduct its affairs in its own name and in accordance with the HVF III LLC Agreement and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special meetings appropriate to authorize all actions of HVF III, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(e) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have liabilities of Hertz or any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated EntityAffiliate thereof;
(vf) except as expressly otherwise permitted hereunder maintain separate financial statements in accordance with GAAP, or, if financial statements are prepared on a consolidated basis with Hertz or contemplated under any Affiliate thereof, such financial statements shall contain notes clearly (i) disclosing the separate legal existence of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with HVF III and (ii) stating that the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit HVF III are owned by HVF III and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of Hertz or such affiliates or any other Person Affiliate and (ii) such assets shall be listed on identifying the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement amounts of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing assets so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities)owned; and
(xvg) otherwise practice and adhere maintain at least two (2) Independent Managers on its Board of Managers. HVF III acknowledges its receipt of a copy of that certain opinion letter issued by White & Case LLP dated June 30, 2021 addressing the issue of substantive consolidation as it may relate to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutionseach of Hertz, the holding of regularly scheduled meetings of members Nominee and Facility Administrator, use stationery, invoices HVF III. HVF III hereby agrees to maintain in place all policies and checks separate from those of any other Affiliated Entityprocedures in all material respects, and maintaining complete take and correct books continue to take all action, described in the factual assumptions set forth in such opinion letter and records relating to such Person, except as may be confirmed as not required in a subsequent or supplemental opinion of White & Case LLP or other law firm of recognized national standing that is counsel to Hertz, the Nominee and/or HVF III addressing the issue of substantive consolidation as it may relate to each of Hertz, the Nominee and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedHVF III.
Appears in 1 contract
Samples: Base Indenture (Hertz Corp)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise contemplated hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain their own deposit and securities accounts, as applicable, separate from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the other Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue, as required, separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to a Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non-Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arm’s length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entitiesapplicable Securitization Entity; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Holder, written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to the Master Issuer referenced in the opinion of White & Case LLP regarding substantive consolidation matters most recently delivered to the Trustee are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Master Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain their own deposit and securities account, as applicable, or accounts, separate from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities shall not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor shall such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the other Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to the Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non-Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arms-length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entitiesapplicable Securitization Entity; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder, written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to the Master Issuer referenced in the opinion of Ropes & Xxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for that the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official recordsMaster Issuer shall, and shall maintain all of its bookscause each other Securitization Entity to, records, financial statements and bank accounts separate from those of comply with any other Affiliated Entity, and shall not permit its assets covenants or obligations assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
Samples: Base Indenture (Wendy's Co)
Maintenance of Separate Existence. The Except to the extent permitted by this Agreement or the other Loan Documents, the Borrower and each Borrower Group Company shall take all reasonable steps to continue conduct its identity as a separate legal entity and to make it apparent to third Persons business such that it is an (and the Borrower shall cause each other Borrower Group Company to conduct such Borrower Group Company’s business such that such Borrower Group Company is) a separate and readily identifiable business from, and independent of, any Person that is not a Borrower Group Company, including WLFC (collectively, “Unrelated Parties”), and further covenants that the Borrowers and each other Borrower Group Company shall: (i) observe all corporate formalities necessary to remain a legal entity with assets separate and liabilities distinct from those of the Affiliated Entities or from, and independent of, each Unrelated Party and any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall:
(i) maintain its limited liability company existence, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
; (ii) maintain its assets in such a manner which facilitates their identification that it is not difficult to segregate, identify or ascertain such assets; (iii) maintain its own books and segregation records and bank accounts separate from those of each Unrelated Party and any other Person except as otherwise contemplated by the constitutional documents of the other Affiliated Entities;
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions Borrower Group Companies or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
Loan Documents; - 96 - (iv) pay its obligations in the ordinary course of business as a legal entity separate from each Unrelated Party and any other Person, except as otherwise required or permitted under the Loan Documents; (v) keep its funds separate and distinct from any funds of each Unrelated Party and any other Person, and receive, deposit, withdraw and disburse such funds separately from any funds of each Unrelated Party and any other Person; (vi) not assume assume, guarantee or guarantee any obligation pay the debts or obligations of any of the other Affiliated Entities, nor have any of its obligations assumed Unrelated Party or guaranteed by any other Affiliated Entity, Person or otherwise pledge its assets for the benefit of any other Affiliated Entity, Unrelated Party or hold itself out as responsible for the debts of any other Affiliated Entity Person except as otherwise permitted under the Loan Documents; (vii) not hold out that it is a division of WLFC or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
Person or that each Unrelated Party or any other Person is a division of it; (vviii) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Loan Documents, not permit hold out its credit or assets as being available to satisfy the commingling or pooling obligations of its funds or other assets with others; (ix) not induce any third party to rely on the assets creditworthiness of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent Unrelated Party or any other direct Person in order that such third party will contract with it, except (A) a guarantee (or indirect parent other undertaking) by WLFC in respect of any obligations of a Borrower Group Member under, or in connection with, an Asset Lease or Loan Asset or otherwise in connection with the Borrower;
lease, sale, purchase, maintenance or storage of any Asset or Unfunded Asset, as applicable, and (viiiB) have agreed as otherwise permitted under the Loan Documents; (x) not commingle its assets or funds with each those of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent any Unrelated Parties or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction Person; (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expensesxi) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
; (xii) maintain conduct business in its books, records, resolutions own name; (xiii) allocate and agreements as official records, charge fairly and shall maintain all of its books, records, financial statements and bank accounts separate from those reasonably any common overhead shared with Affiliates; (xiv) not acquire the securities of any Unrelated Party or any Affiliate thereof (other Affiliated Entity, than any Borrower Group Company); and shall (xv) not permit its assets to be listed on the financial statement of enter into any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower transactions between it and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates any Unrelated Party or any other Person that are more favorable to such Person than transactions that the parties would have been able to enter into at such time on an arm’s-length basis with a non-affiliated third party, other than any agreements in effect on the date hereof; and (xvi) transact all business with Affiliates on an arm’s length basis, except as permitted under the Loan Documents including as may be contemplated above. For the avoidance of doubt, the Borrower Group Companies are authorized to, and to permit other Borrower Group Companies to (i) lease to an Affiliate that is a leasing intermediary, - 97 - including, but not limited to, as part of a “lease-in/lease-out” arrangement and (ii) such assets shall be listed on engage in any activity or other undertaking expressly required or expressly authorized by the Borrower’s own separate balance sheet;
(xiii) except as provided in Loan Documents and the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedServicing Agreement.
Appears in 1 contract
Samples: Secured Credit Agreement (Willis Lease Finance Corp)
Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower HVIF shall:
(ia) maintain its limited liability company existenceown deposit account or accounts, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of HVIF will not be diverted to any other Person or for other than the use of HVIF, nor will such funds be commingled with the funds of Hertz or any other Affiliated EntitiesSubsidiary or Affiliate of Hertz other than as provided in the Related Documents;
(iiib) except as expressly otherwise permitted hereunderensure that all transactions between HVIF and any of its Affiliates, conduct all intercompany transactions whether currently existing or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would hereafter entered into, shall be available only on an arm’s length basis with unaffiliated third partiesbasis, it being understood and agreed that the transactions contemplated in the Related Documents meet the requirements of this clause (b);
(ivc) to the extent that it requires an office to conduct its business, conduct its business from an office at a separate address from that of Hertz and its Affiliates (other than Hertz Vehicles LLC or any other affiliated special purpose company (other than HGI)); provided, that segregated offices in the same building shall constitute separate addresses for purposes of this clause (c). To the extent that HVIF and any of its members or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(d) conduct its affairs in its own name and in accordance with the HVIF LLC Agreement and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special meetings appropriate to authorize all actions of HVIF, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(e) not assume or guarantee any obligation of any of the other Affiliated Entities, nor have liabilities of Hertz or any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated EntityAffiliate thereof;
(vf) except as expressly otherwise permitted hereunder maintain separate financial statements in accordance with GAAP, or, if financial statements are prepared on a consolidated basis with Hertz or contemplated under any Affiliate thereof, such financial statements shall contain notes clearly (i) disclosing the separate legal existence of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with HVIF and (ii) stating that the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit HVIF are owned by HVIF and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of Hertz or such affiliates or any other Person Affiliate and (ii) such assets shall be listed on identifying the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement amounts of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing assets so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities)owned; and
(xvg) otherwise practice and adhere to corporate formalities such as complying with maintain at least two (2) Independent Managers on its organizational documents and member and Facility Administrator resolutions, the holding Board of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedManagers.
Appears in 1 contract
Samples: Base Indenture (Hertz Corp)
Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity Each of HVF II and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shallHVF II General Partner will:
(ia) maintain its limited liability company existenceown deposit account or accounts, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of HVF II will not be diverted to any other Person or for other than the use of HVF II, nor will such funds be commingled with the funds of Hertz or any other Affiliated EntitiesSubsidiary or Affiliate of Hertz other than as provided in the Master Related Documents;
(iiib) except as expressly otherwise permitted hereunderensure that all transactions between HVF II and any of its Affiliates, conduct all intercompany transactions whether currently existing or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would hereafter entered into, shall be available only on an arm’s length basis with unaffiliated third partiesbasis, it being understood and agreed that the transactions contemplated in the Master Related Documents meet the requirements of this clause (b);
(ivc) to the extent that it requires an office to conduct its business, conduct its business from an office at a separate address from that of Hertz and its Affiliates (other than Hertz Vehicles LLC or any other affiliated special purpose company (other than HGI)); provided, that segregated offices in the same building shall constitute separate addresses for purposes of this clause (c). To the extent that HVF II and any of its members or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(d) conduct its affairs in its own name and in accordance with the HVF II LP Agreement or the HVF II General Partner Certificate of Incorporation and by-laws, as applicable, and observe all necessary, appropriate and customary limited partnership or corporate formalities, as applicable, including, but not limited to, holding all regular and special meetings and/or adopting all written consents appropriate to authorize all actions of HVF II or the HVF II General Partner, as applicable, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(e) not assume or guarantee any obligation of any of the liabilities of Hertz or any Affiliate thereof (other Affiliated Entities, nor have than any liability of its obligations HVF II that may be deemed assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect HVF II General Partner solely due to the business and affairs HVF II General Partner’s status as a general partner of any other Affiliated EntityHVF II under the law of the State of Delaware);
(vf) except as expressly otherwise permitted hereunder or contemplated under any only in the case of the other Transaction DocumentsHVF II General Partner, maintain at least two (2) Independent Directors on its Board of Directors; and
(g) maintain separate financial statements in accordance with GAAP, or, if financial statements are prepared on a consolidated basis with Hertz or any Affiliate thereof, such financial statements shall contain notes clearly (i) disclosing the SAP Financing Documents, separate legal existence of each of HVF II and the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with HVF II General Partner and (ii) stating that the assets of any other Affiliated Entity HVF II and the assets of the HVF II General Partner are owned by HVF II or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employeesthe HVF II General Partner, consultants and agentsas applicable, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of Hertz or such affiliates or any other Person Affiliate and (ii) such assets shall be listed on identifying the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement amounts of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing assets so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedowned.
Appears in 1 contract
Samples: Base Indenture (Hertz Corp)
Maintenance of Separate Existence. The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other Person, and that it is not a division of any of the Affiliated Entities or any other Person. In that regard the Borrower shall:
(i) maintain its limited liability company existence, make independent decisions with respect to its daily operations and business affairs, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation from those of any of the other Affiliated Entities;
(iii) except as expressly otherwise permitted hereunder, conduct all intercompany transactions or enter into any contract or agreement with the other Affiliated Entities except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third parties;
(iv) except as contemplated under any Transaction Document, not assume or guarantee any obligation of any of the other Affiliated Entities, nor have any of its obligations assumed or guaranteed by any other Affiliated Entity, pledge its assets for the benefit of any other Affiliated Entity, or hold itself out as responsible for the debts of any other Affiliated Entity or for the decisions or actions with respect to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out to the public as a legal entity separate and distinct from any other Affiliated Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operations, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets to be listed on the financial statement of any other Affiliated Entity; provided, however, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal or combined federal, state or local tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed.
Appears in 1 contract
Samples: Credit Agreement (Sunnova Energy International Inc.)
Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer shall, and that it is not a division of any of shall cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shall:
Related Documents: (i) maintain its limited liability company existencetheir own deposit and securities accounts, make independent decisions with respect to its daily operations and business affairsas applicable, not amend, modify, terminate or fail to comply with the provisions of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, and, other than pursuant to the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other Person;
(ii) maintain its assets in a manner which facilitates their identification and segregation separate from those of any of its Affiliates (other than the other Affiliated Securitization Entities;
(iii) except as expressly otherwise permitted hereunder), conduct all intercompany transactions with commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to any Person who is not a Securitization Entity or enter into any contract or agreement for other than the use of the Securitization Entities, nor will such funds be commingled with the funds of any of its Affiliates (other Affiliated Entities except upon terms than the other Securitization Entities), other than as provided in the Related Documents; (ii) ensure that all transactions between it and conditions that are intrinsically fair and substantially similar to those that would any of its Affiliates (other than the other Securitization Entities), whether currently existing or hereafter entered into, shall be available only on an arm’s length basis with unaffiliated third parties;
basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii); (iii) to the extent that it requires an office to conduct its business, conduct its business from an office at a separate address from that of any of its Affiliates (other than the other Securitization Entities); provided that segregated offices in the same building shall AMERICAS 94962794 91 constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses; (iv) issue, as required, separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP; (v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts; (vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to a Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entityone or more Non-Securitization Entities if the Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of credit in an amount equal to the cost to the Master Issuer in connection with the issuance and maintenance of such letter of credit plus 25 basis points per annum, it being understood that such fee is an arm’s length fair market fee; (vii) take, or hold itself out refrain from taking, as responsible the case may be, all other actions that are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to it and (y) comply in all material respects with those procedures described in such provisions which are applicable to it; (viii) maintain at least two Independent Managers, on its board of managers or its Board of Directors, as the case may be; (ix) to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for Cause and only after providing the debts Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any other Affiliated Entity proposed removal of such Independent Manager, and (B) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements for an Independent Manager set forth in the Charter Documents of the applicable Securitization Entity; and (x) (A) provide, or for cause the decisions or actions Manager to provide, to the Trustee and the Control Party, a copy of the executed agreement with respect to the business and affairs appointment of any other Affiliated Entity;replacement Independent Manager and (B) provide, or cause the Manager to provide, to the
(vb) except as expressly otherwise permitted hereunder or contemplated under any The Master Issuer, on behalf of the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets with the assets of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit itself and other bank accounts to which no other Affiliated Entity has any access;
(vii) compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliated Entities, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower;
(viii) have agreed with each of the other relevant Affiliated Entities to allocate among themselvesSecuritization Entities, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of confirms that the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm statements relating to the company if publicly disclosed. and auditing expenses) on Master Issuer referenced in the basis opinion of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services rendered;
(ix) pay for its own account, directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrower, its own liabilities, including, without limitation, for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or the Borrower’s allocable share thereof) paid by any of the Affiliated Entities; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;
(x) conduct its business (whether in writing or orally) solely in its own name through its duly authorized officers, employees and agents, including the Facility Administrator, hold itself out Ropes & Gray LLP regarding substantive consolidation matters delivered to the public as a legal entity separate Trustee on each Series Closing Date are true and distinct from any correct with respect to itself and each other Affiliated Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Master Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
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Maintenance of Separate Existence. (a) The Borrower shall take all reasonable steps to continue its identity as a separate legal entity and to make it apparent to third Persons that it is an entity with assets and liabilities distinct from those of the Affiliated Entities or any other PersonMaster Issuer will, and that it is not a division of any of will cause each other Securitization Entity to, except as otherwise permitted hereunder or under the Affiliated Entities or any other Person. In that regard the Borrower shallRelated Documents:
(i) maintain separate deposit and securities accounts, as applicable, or other accounts, from those of any of its limited liability company existenceAffiliates (other than the other Securitization Entities), make independent decisions with respect commercial banking institutions and ensure that the funds of the Securitization Entities will not be diverted to its daily operations and business affairsany Person who is not a Securitization Entity or for other than the use of the Securitization Entities, not amend, modify, terminate or fail to comply nor will such funds be commingled with the provisions funds of any of its organizational documents, not merge into or consolidate with any Person, or dissolve, terminate, liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, andAffiliates (other than the Securitization Entities), other than pursuant to as provided in the terms of the limited liability company agreement of the Borrower, not be controlled in making such decisions by any other Affiliated Entity or any other PersonRelated Documents;
(ii) maintain its assets in a manner which facilitates their identification ensure that all transactions between it and segregation from those of any of its Affiliates (other than the other Affiliated Securitization Entities), whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents and the transactions described in the proviso to clause (vi) meet the requirements of this clause (ii);
(iii) except as expressly otherwise permitted hereunderto the extent that it requires an office to conduct its business, conduct all intercompany transactions or enter into its business from an office at a separate address from that of any contract or agreement with of its Affiliates (other than the other Affiliated Entities except upon terms Securitization Entities); provided that segregated offices in the same building shall constitute separate addresses for purposes of this clause (iii). To the extent that any Securitization Entity and conditions that are intrinsically any of its members or Affiliates (other than the other Securitization Entities) have offices in the same location, there shall be a fair and substantially similar to those that would be available on an arm’s length basis with unaffiliated third partiesappropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(iv) issue, as required, separate financial statements from any of its Affiliates (other than the other Securitization Entities) prepared at least quarterly and prepared in accordance with GAAP;
(v) conduct its affairs in its own name and in accordance with its Charter Documents and observe all necessary, appropriate and customary limited liability company or corporate formalities (as applicable), including, but not limited to, holding all regular and special meetings appropriate to authorize all its actions, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;
(vi) not assume or guarantee any obligation of the liabilities of any of its Affiliates (other than the other Affiliated Securitization Entities); provided that the Securitization Entities may, nor have any pursuant to the Letter of its obligations assumed or guaranteed by any other Affiliated EntityCredit Reimbursement Agreement, pledge its assets cause letters of credit to be issued pursuant to Variable Funding Note Purchase Agreements that are for the sole benefit of any other Affiliated Entity, one or hold itself out as responsible for more Non-Securitization Entities if the debts Master Issuer receives a fee from each Non-Securitization Entity whose obligations are secured by such letter of any other Affiliated Entity or for the decisions or actions with respect credit in an amount equal to the business and affairs of any other Affiliated Entity;
(v) except as expressly otherwise permitted hereunder or contemplated under any of cost to the other Transaction Documents, the SAP Financing Documents, the SAP NTP Financing Documents or the Tax Equity Financing Documents, not permit the commingling or pooling of its funds or other assets Master Issuer in connection with the assets issuance and maintenance of any other Affiliated Entity or make any loans or advances to any other Affiliated Entity;
(vi) maintain separate deposit and other bank accounts to which no other Affiliated Entity has any accesssuch letter of credit plus 25 basis points per annum, it being understood that such fee is an arms-length fair market fee;
(vii) compensate take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (either directly or through reimbursement of its allocable share of any shared expensesx) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all employees, consultants material respects with respect to it and agents, and Affiliated Entities, (y) comply in all material respects with those procedures described in such provisions which are applicable to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or Affiliated Entities, in each case, either directly from the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent of the Borrowerit;
(viii) have agreed with each maintain at least two Independent Managers, on its board of managers or its board of directors, as the other relevant Affiliated Entities to allocate among themselves, through documented intercompany transactions, including documented capital contributions from Parent or any other direct or indirect parent of the Borrower, shared overhead and corporate operating services and expenses which are not reflected in documentation in connection with a Takeout Transaction (including the services of shared employees, consultants and agents and reasonable legal [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosed. and auditing expenses) on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to actual use or the value of services renderedcase may be;
(ix) pay to the fullest extent permitted by law, so long as any Obligation remains outstanding, remove or replace any Independent Manager only for its own accountCause and only after providing the Trustee and the Control Party with no less than three (3) days’ prior written notice of (A) any proposed removal of such Independent Manager, directly from and (B) the Borrower’s own funds or indirectly through documented capital contributions from Parent or any other direct or indirect parent identity of the Borrowerproposed replacement Independent Manager, its own liabilities, including, without limitation, together with a certification that such replacement satisfies the requirements for accounting and payroll services, rent, lease and other expenses (or its allocable share of any such amounts provided by one or more other Affiliated Entity) and not have such liabilities or operating expenses (or an Independent Manager set forth in the Borrower’s allocable share thereof) paid by any Charter Documents of the Affiliated Entitiesapplicable Securitization Entity; provided, that Parent or another Affiliated Entity shall be permitted to pay the initial organizational expenses of the Borrower;and
(x) conduct its business (whether in writing A) provide, or orally) solely in its own name through its duly authorized officerscause the Manager to provide, employees and agents, including the Facility Administrator, hold itself out to the public as Trustee and the Control Party, a legal entity separate copy of the executed agreement with respect to the appointment of any replacement Independent Manager and distinct from (B) provide, or cause the Manager to provide, to the Trustee, the Control Party and each Noteholder, written notice of the identity and contact information for each Independent Manager on an annual basis and at any time such information changes.
(b) The Master Issuer, on behalf of itself and each of the other Affiliated Securitization Entities, confirms that the statements relating to the Master Issuer referenced in the opinion of Ropes & Xxxx LLP regarding substantive consolidation matters delivered to the Trustee on each Series Closing Date are true and correct with respect to itself and each other Securitization Entity, and correct any known misunderstanding regarding its separate identity;
(xi) maintain a sufficient number of employees in light of its contemplated business operationsthat the Master Issuer will, and maintain adequate capital for the normal will cause each other Securitization Entity to, comply with any covenants or obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(xii) maintain its books, records, resolutions and agreements as official records, and shall maintain all of its books, records, financial statements and bank accounts separate from those of any other Affiliated Entity, and shall not permit its assets assumed to be listed on the financial statement of any other Affiliated Entity; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its affiliates provided that (i) appropriate notation shall be made on complied with by it therein as if such consolidated financial statements to indicate the separateness of Borrower covenants and such affiliates and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such affiliates or any other Person and (ii) such assets shall be listed on the Borrower’s own separate balance sheet;
(xiii) except as provided in the limited liability company agreement of the Borrower, not acquire obligations or securities of any other Affiliated Entities, or identify its members or the other Affiliated Entities, as applicable, as a division or part of it;
(xiv) file its own tax returns unless prohibited by Applicable Law from doing so (except that the Borrower may file or may include its filing as part of a consolidated federal tax return, to the extent required and/or permitted by Applicable Law, provided that, there shall be an appropriate notation indicating the separate existence of the Borrower and its assets and liabilities); and
(xv) otherwise practice and adhere to corporate formalities such as complying with its organizational documents and member and Facility Administrator resolutions, the holding of regularly scheduled meetings of members and Facility Administrator, use stationery, invoices and checks separate from those of any other Affiliated Entity, and maintaining complete and correct books and records and minutes of meetings and other proceedings of its members and Facility Administrator. [***] = Certain information has been excluded from this exhibit because it is both not material and would likely cause harm to the company if publicly disclosedwere set forth herein.
Appears in 1 contract
