Nonconsolidation. The Seller will operate in such a manner that the separate corporate existence of the Seller and each Seller Entity and Affiliate thereof would not be disregarded in the event of the bankruptcy or insolvency of any Seller Entity and Affiliate thereof and, without limiting the generality of the foregoing:
(i) the Seller will 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 Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Seller will maintain a business office separate from that of each of the Seller Entities and the Affiliates thereof (which office may be located within the physical premises of the Parent pursuant to an arms’ length agreement);
(iii) the Seller will cause the financial statements and books and records of the Seller to reflect the separate corporate existence of the Seller;
(iv) the Seller will not, except as otherwise expressly permitted hereunder, under the other Transaction Documents and under the Seller’s organizational documents, authorize any Seller 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 except that Parent may make contributions to the capital of Seller; and
(v) the Seller will not act as agent for any Seller 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.
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 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. (1) Borrower maintains correct and complete books and records of account separate from all other Persons. Where necessary or appropriate, Borrower has disclosed the nature of the transaction contemplated by the Loan Documents and Borrower's independent status to its creditors. The Premises represent all of the assets owned or leased by Borrower as of the date hereof, and Borrower has not commingled its assets and its liabilities with those of any other Person.
(2) Borrower maintains 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 have been fairly and nonarbitrarily allocated among such Persons, with the result that each such Person bears 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 are, and at all times shall be, fairly and nonarbitrarily allocated among such Persons, with the result that each such Person bears 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 are 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 bears its fair share of such costs.
(5) To the extent that Borrower or other Persons have offices in the same location, there is a fair, appropriate and nonarbitrary allocation of overhead among them, with the result that each such Person bears its fair share of such expenses.
(6) Borrower has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent, including, without limitation, liability for the debts of any other Person (and Borrower has not held itself out as being liable for the debts of any other Person), other than the Loans and trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances. Borrower is not a guarantor of any obligations.
(7) Except as contemplated by the Loan Docu...
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 Seller shall operate in such a manner that the separate corporate existence of the Seller and each Originator and Affiliate thereof would not be disregarded in the event of the bankruptcy or insolvency of any Originator 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 Agent, any other agreement necessary to carryout more effectively the provisions and purposes hereof or thereof;
(ii) the Seller shall maintain a business office separate from that of each of the Originators and the Affiliates thereof;
(iii) the Seller shall cause the financial statements and books and records of the Seller and the Originator to reflect the separate corporate existence of the Seller;
(iv) the Seller shall except as otherwise expressly permitted hereunder, under the other Transaction Documents and under the Seller’s organizational documents, the Seller shall not permit any Originator 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; and
Nonconsolidation. The Transferor conducts, and will at all times conduct, its affairs such that neither the Depositor 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 Depositor 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 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, in accordance with (i) the terms of its limited liability company agreement and (ii) the assumptions set forth in each opinion letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP (or other counsel to the Borrower approved by the Administrative Agent) with respect to issues of substantive consolidation and true sale and absolute transfer.
