Common use of Seller Separateness Clause in Contracts

Seller Separateness. Seller shall (a) own no assets, and will not engage in any business, other than the assets and transactions specifically contemplated by this Agreement; (b) not incur any Indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant to the Facility Documents; (c) not make any loans or advances to any third party other than Eligible Assets (for the avoidance of doubt, the foregoing shall not be deemed to include the purchase of assets and the payment of any Future Funding Obligation), and shall not acquire obligations or securities of its affiliates; (d) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (e) comply with the provisions of its organizational documents; (f) do all things necessary to observe organizational formalities and to preserve its existence, and will not amend, modify or otherwise change its organizational documents, or suffer same to be amended, modified or otherwise changed, without the prior written consent of Buyer; (g) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates except as contemplated by the Facility Documents; (h) be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks; (i) 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; (j) not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (k) not commingle its funds or other assets with those of any Affiliate or any other Person except as contemplated by the Facility Documents; (l) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or any other person; (m) not and will not hold itself out to be responsible for the debts or obligations of any other Person; (n) cause each of its direct owners to agree not to (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to Seller; institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to Seller; (ii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Seller or a substantial portion of its properties; or (iii) make any assignment for the benefit of Seller’s creditors except as contemplated by the Facility Documents.

Seller Separateness. Seller shall (a) own no assets, and will not engage in any business, other than the assets and transactions specifically contemplated by this Agreement; (b) not incur any Indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant to (i) in accordance with the Facility Program Documents, (ii) obligations under the documents evidencing the Purchased Assets, and (iii) unsecured trade payables incurred in the ordinary course of acquiring, owning, financing and disposing of the Purchased Assets; (c) not make any loans or advances to any third party other than Eligible Assets (for the avoidance of doubt, the foregoing shall not be deemed to include the purchase of assets and the payment of any Future Funding Obligation, including, without limitation, repurchased assets), and shall not acquire obligations or securities of its affiliates; (d) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assetsassets and contributions by its member(s); provided that the foregoing shall not require any Person to make any capital contribution to Seller; (e) comply with the provisions of its organizational documentsdocuments in all material respects; (f) do all things necessary to observe organizational formalities and to preserve its existence, and will not amend, modify or otherwise change its organizational documents, or suffer same to be amended, modified or otherwise changed, without the prior written consent of Buyerexcept in compliance with Section 12(bb) below; (g) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates except as contemplated by the Facility DocumentsProgram Documents and except that such financial statements may be consolidated to the extent consolidation is permitted or required under GAAP or as a matter of Requirements of Law, provided that appropriate notation shall be made on such consolidated financial statements to indicate that Seller’s assets are pledged as collateral for another security agreement); (h) be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate) (other than for tax purposes and with respect to consolidated financial statements), shall correct any known misunderstanding regarding its status as a separate entityentity , and, shall conduct business in its own namename or through a servicer on its behalf, shall not identify itself or any of its affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checks; (i) 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, provided that the foregoing shall not require any member of Seller to make a capital contribution to Seller; (j) not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (k) not commingle its funds or other assets with those of any Affiliate or any other Person except as contemplated by the Facility DocumentsProgram Documents (it being understood that transfers of Seller’s funds to a centralized account payable system utilized by Seller and Guarantor and administered by The RMR Group LLC from which Seller’s expenses are paid does not violate or breach this covenant); (l) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any affiliate or any other person; (m) not and will not hold itself out to be responsible for the debts or obligations of any other Person; (n) cause each of its direct owners to agree not to to, without the prior written consent of its Independent Director, (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to Seller; institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to Seller; (ii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Seller or a substantial portion of its properties; or (iii) make any assignment for the benefit of Seller’s creditors except as contemplated by the Facility Program Documents.

Seller Separateness. Seller shall not: (a1) own no assets, and will not engage in any business, business or activity other than the assets entering into and transactions specifically contemplated by performing its obligations under this AgreementAgreement and related documents, and activities incidental thereto; (b2) acquire or own any assets other than (i) the Purchased Assets and (ii) such incidental personal property related thereto; (3) 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 corporate form; (4)(i) fail to observe all organizational formalities, or fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the applicable laws of the jurisdiction of its organization or formation, or (ii) amend, modify, terminate or fail to comply with the provisions of its organizational documents, in each case without the prior written consent of Buyer, such consent not to be unreasonably withheld, conditioned or delayed, or any provision in this Agreement or any Program Document relating to the scope of the Seller’s business or the Seller’s obligations under this Agreement or any Program Document, for which such consent shall be at Buyer’s sole and absolute discretion; (5) own any subsidiary, or make any investment in, any Person; (6) commingle its assets with the assets of any other Person, or permit any Affiliate or constituent party independent access to its bank accounts; (7) incur any Indebtedness or obligationdebt, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the debt incurred pursuant to the Facility DocumentsAgreement; (c8) fail to maintain its records, books of account, bank accounts, financial statements, accounting records and other entity documents separate and apart from those of any other Person; except that the Seller’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of an Affiliate; provided that the Seller’s assets, liabilities, and net worth shall also be listed on the Seller’s own balance sheet; (9) except for capital contributions or capital distributions permitted under the terms and conditions of Seller’s organizational documents and properly reflected on its books and records, enter into any transaction, contract or agreement with any general partner, member, shareholder, principal, guarantor of the obligations of Seller, or any Affiliate of the foregoing, except upon terms and conditions that are intrinsically fair, commercially reasonable and substantially similar to those that would be available on an arm’s-length basis with unaffiliated third parties; (10) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person and not maintain its properties, assets and accounts separate from those of any Affiliate or any other Person; (11) assume or guaranty the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets to secure the obligations of any other Person or hold out its credit or assets as being available to satisfy the obligations of any other Person or enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm’s length transaction; (12) make any loans or advances to any third party other than Eligible Assets (for the avoidance of doubtPerson, the foregoing shall not be deemed to include the purchase of assets and the payment of or own any Future Funding Obligation), and shall not acquire obligations stock or securities of its affiliatesof, any Person; (d13) pay its debts and liabilities fail to (including, as applicable, shared personnel and overhead expensesi) only from file its own assets; (e) comply with the provisions of its organizational documents; (f) do all things necessary to observe organizational formalities and to preserve its existence, and will not amend, modify or otherwise change its organizational documents, or suffer same to be amended, modified or otherwise changed, without the prior written consent of Buyer; (g) maintain all of its books, records, financial statements and bank accounts tax returns separate from those of any other Person, except to the extent the Seller is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable legal requirements, and (ii) pay any taxes required to be paid under applicable law; provided, however, that the company shall not have any obligation to reimburse its equity holders or their Affiliates except for any taxes that such equity holders or their Affiliates may incur as contemplated by a result of any profits or losses of the Facility Documentscompany; (h14) be, and at all times will fail to (i) hold itself out to the public as, as a legal entity separate and distinct from any other entity Person, (including any Affiliate), shall ii) conduct its business solely in its own name or (iii) correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its affiliates as a division or part of the other and shall maintain and utilize separate stationery, invoices and checksidentity; (i15) fail to 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, provided that the foregoing shall not require any member, partner or shareholder of the Seller to make any additional capital contributions to the Seller; (j16) not engage in or suffer without the unanimous written consent of one hundred percent (100%) of all managers of the Seller, including, without limitation, the Independent Manager take any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in partaction which may cause an Insolvency Event; (k17) fail to allocate shared expenses (including, without limitation, shared office space and services performed by an employee of an affiliate) among the Persons sharing such expenses; (18) fail to remain solvent or pay its own liabilities only from its own funds; provided that the foregoing shall not commingle require any member, partner or shareholder of the Seller to make any additional capital contributions to Seller; (19) acquire obligations or securities of its funds partners, members, shareholders or other assets with those of any Affiliate or any other Person except Affiliates, as contemplated by the Facility Documentsapplicable; (l20) maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of have any affiliate or any other personemployees; (m21) not and will not hold itself out to be responsible have any of its obligations guaranteed by an Affiliate except for the debts Program Guaranty; (22) identify itself as a department or obligations division of any other Person; (n23) cause each acquire obligations or securities of its direct owners to agree not to (i) file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to Seller; institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to Seller; (ii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian members or any similar official for Seller Affiliates; and (24) buy or a substantial portion hold evidence of its properties; indebtedness issued by any other Person (other than Purchased Assets or (iii) make any assignment for the benefit of Seller’s creditors except as contemplated by the Facility DocumentsCash Equivalents).