Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate ...
Nonconsolidation. The Originator has taken and will continue to take all actions required to maintain the Depositor’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documents.
Nonconsolidation. (1) Borrower shall at all times maintain correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower shall disclose the nature of the transactions contemplated by the Loan Documents and Borrower's independent status to its creditors. Borrower shall not own or lease any assets other than the Premises, nor engage in any business other than owning and leasing the Premises, including financing the Premises with Lender. Borrower shall not commingle its assets and its liabilities with those of any other Person.
(2) Borrower shall maintain its own checking account or accounts with commercial banking institutions separate from other Persons.
(3) To the extent that Borrower shares the same employees with other Persons, the salaries of and the expenses related to providing benefits to such employees, at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of the salary and benefit costs associated with all such common employees.
(4) To the extent that Borrower jointly contracts with other Persons to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person shall bear its fair share of such costs. To the extent that Borrower contracts or does business with vendors or service providers where the goods or services provided are or shall be partially for the benefit of other Persons, the costs incurred in so doing at all times shall be, fairly and nonarbitrarily allocated to or among such Persons for whose benefit the goods or services are provided, with the result that each such Person shall bear its fair share of such costs. All transactions between Borrower and other Persons shall be only on an arm's-length basis.
(5) To the extent that Borrower or other Persons have offices in the same location, there shall be a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person shall bear its fair share of such expenses.
(6) Borrower shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation or assuming liability for the debts of any other Person and Borrower will not hold itself out as being liable for the debts of any other Person), ot...
Nonconsolidation. The Transferor is operated in such a manner that it would not be substantively consolidated with the Contributor, such that the separate existence of the Transferor and the Contributor would not be disregarded in the event of a bankruptcy or insolvency of the Transferor or the Contributor, and in such regard, among other things:
(a) the Transferor is not involved in the day to day management of the Contributor;
(b) the Transferor maintains separate Transferor records and books of account from the Contributor and otherwise observes Transferor formalities and has a separate business office from the Contributor;
(c) the financial statements and books and records of the Transferor prepared after the date of creation of the Contributor reflect and will reflect the separate existence of the Contributor;
(d) the Transferor maintains its assets separately from the assets of the Contributor (including through the maintenance of a separate bank account), the Transferor's funds and assets, and records relating thereto, have not been and are not commingled with those of the Contributor and the separate creditors of the Contributor will be entitled to be satisfied out of the Contributor's assets prior to any value in the Contributor becoming available to the Contributor's equityholders or the Transferor's creditors;
(e) all business correspondence of the Transferor and other communications are conducted in the Transferor's own name and on its own stationery;
(f) the Contributor does not act as an agent of the Transferor in any capacity and the Transferor does not act as agent for the Contributor, but instead presents itself to the public as a corporation separate from the Contributor; PROVIDED that the Contributor is the Servicer hereunder; and
(g) the Transferor will at all times maintain two Independent Directors (as such term is defined in the certificate of incorporation of the Transferor).
Nonconsolidation. The Seller is and at all times since its incorporation has been operated in such a manner that it would not be substantively consolidated with the Originator or the Issuer and such that the separate existence of any of the Originator, the Seller or the Issuer would not be disregarded in the event of a bankruptcy or insolvency of the Seller or the Issuer, and in such regard:
(a) the Seller is not involved in the day-to-day management of the Originator or the Issuer;
(b) the Seller maintains separate corporate records and books of account from the Originator and the Issuer and otherwise observes corporate formalities and has a separate business office from the Originator and the Issuer;
(c) the financial statements and books and records of the Seller prepared after the Issuance Date will reflect the separate existence of the Originator and the Issuer;
(d) the Seller maintains its assets separately from the assets of the Originator and the Issuer (including through the maintenance of a separate bank account), the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Originator or the Issuer and the separate creditors of the Originator and the Issuer will be entitled to be satisfied out of the Originator's and the Issuer's respective assets prior to any value in the Originator or the Issuer becoming available to the Originator's or the Issuer's equityholders or the Seller's creditors;
(e) all business correspondence of the Seller and other communications are conducted in the Seller's own name and on its own stationery; and
(f) neither the Originator nor the Issuer acts as an agent of the Seller in any capacity and the Seller does not act as agent for the Originator or the Issuer, but instead presents itself to the public as a corporation separate from the Originator and the Issuer.
Nonconsolidation. The Trust Depositor conducts its affairs such that the Issuer would not be substantively consolidated in the estate of the Trust Depositor and their respective separate existences would not be disregarded in the event of the Trust Depositor’s bankruptcy.
Nonconsolidation. The Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing: 727159853 10435078 24
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent and the Requisite Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(iv) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms ...
Nonconsolidation. The Transferor conducts, and will at all times conduct, its affairs such that neither the Retention Holder nor the Issuer would be substantively consolidated in the estate of the Transferor and their respective separate existences would not be disregarded in the event of a bankruptcy of the Transferor (provided, however, the Transferor does not hereby agree to maintain the solvency of the Retention Holder or of the Issuer).
Nonconsolidation. The Seller conducts its affairs such that the Trust Depositor would not be substantively consolidated in the estate of the Seller and their respective separate existences would not be disregarded in the event of the Seller’s bankruptcy.
Nonconsolidation. The Seller shall operate in such a manner that the separate corporate existence of the Seller would not be disregarded in the event of the bankruptcy or insolvency of any Swift Entity and Affiliate thereof and, without limiting the generality of the foregoing:
(i) the Seller shall not engage in any activity other than those activities expressly permitted under the Seller’s organizational documents and the Transaction Documents, nor will the Seller enter into any agreement other than this Agreement, the other Transaction Documents to which it is a party and, with the prior written consent of the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) to the extent the Seller’s office is located in the offices of any Affiliate of the Seller, the Seller shall at all times pay fair market rent for such office space and a fair share of any overhead costs associated therewith;
(iii) the Seller shall cause the financial statements, books, accounting records and other corporate documents and records of the Seller and the Originators to reflect the separate corporate existence of the Seller;
(iv) except as otherwise expressly permitted hereunder, under the other Transaction Documents and under the Seller’s organizational documents, the Seller shall not permit any Swift Entity or Affiliate thereof to (A) pay the Seller’s expenses, (B) guarantee the Seller’s obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise;
(v) the Seller will not act as agent for any Swift Entity or Affiliate, but instead will present itself to the public as a corporation separate from each such Person and independently engaged in the business of purchasing and financing Receivables;
(vi) the Seller will not commingle its assets with those of any Swift Entity or Affiliate or any other entity, and not hold itself out as being liable for the debts of another,
(vii) the Seller will maintain the Seller’s books of account and payroll (if any) separate from those of any Swift Entity or Affiliate;
(viii) the Seller will act solely in its corporate name and through its own authorized officers and agents, invoices and letterhead in a manner designed not to mislead third parties as to the separate identity of the Seller;
(ix) the Seller will not permit any Swift Entity or Affiliate to mislead third parties by conducting or appearing to conduct business on behalf of the Seller or expressly or i...
