Separate Business. The Borrower covenants with each of the Finance Parties that it will conduct its business so as to maintain its separate existence as a legal entity from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries and further covenants that it will: (a) observe those material corporate formalities reasonably necessary to remain a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries; (b) maintain its assets and liabilities separate from those of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries; (c) maintain records, books, accounts, and minutes separate from those of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries; except to the extent that the Borrower’s and/or the Head Lessee’s separate financial statements are maintained on the Guarantor’s, or the Borrower’s separate financial statements are maintained on the Head Lessee’s, accounting system (and not on a stand-alone system); (d) pay its obligations in the ordinary course of business as a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries; (e) keep its funds separate from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries, and will receive, deposit, withdraw and disburse such funds separately from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries; (f) conduct its business in its own name, and not in the name of each of the Head Lessee and the Guarantor or any of their respective Subsidiaries, except that the Borrower may be referred to together or in connection with the Guarantor and/or the Head Lessee in presentational, promotional or advertising materials; (g) not agree to pay or become liable for any debt of each of the Head Lessee and the Guarantor or any of their respective Subsidiaries, other than to make payments in the form of indemnities as required by the express terms of this Agreement or the other Transaction Documents; (h) not hold out that it is a division of the Head Lessee or the Guarantor or any of their respective Subsidiaries, or that the Head Lessee and the Guarantor or any of their respective Subsidiaries is a division of it; (i) not induce any third party to rely on the creditworthiness of the Head Lessee or the Guarantor or any of their respective Subsidiaries in order that such third party will be induced to contract with it; (j) not enter into any transaction between it and the Head Lessee or the Guarantor or any of their respective Subsidiaries that are as a whole materially more favourable to either party 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; and (k) observe those material corporate or other procedures reasonably required under Applicable Law and under its constitutive documents to remain a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries.
Appears in 1 contract
Separate Business. The Borrower covenants Issuer shall at all times (i) to the extent the Issuer's office is located in the offices of CAC or any Affiliate of CAC, pay fair market rent for its executive office space located in the offices of CAC or any Affiliate of CAC, (ii) have at all times at least two members of its board of directors which are not and have never been employees, officers or directors of CAC or any Affiliate of CAC or of any major creditor of CAC or any Affiliate of CAC and are persons who are familiar and have experience with each of the Finance Parties that it will conduct its business so as to maintain its separate existence as a legal entity from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries and further covenants that it will:
asset securitization, (a) observe those material corporate formalities reasonably necessary to remain a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries;
(biii) maintain its assets the Issuer's books, financial statements, accounting records and liabilities other corporate documents and records separate from those of each CAC or any other entity, (iv) not commingle the Issuer's assets with those of CAC or any other entity, (v) act solely in its corporate name and through its own authorized officers and agents, (vi) make investments directly or by brokers engaged and paid by the Issuer or its agents (provided that if any such agent is an Affiliate of the Head Lessee and Issuer it shall be compensated at a fair market rate for its services), (vii) separately manage the Guarantor and any of their respective Subsidiaries;
(c) maintain records, books, accounts, and minutes separate Issuer's liabilities from those of each CAC or any Affiliates of the Head Lessee CAC and the Guarantor and any of their respective Subsidiaries; except to the extent that the Borrower’s and/or the Head Lessee’s separate financial statements are maintained on the Guarantor’s, or the Borrower’s separate financial statements are maintained on the Head Lessee’s, accounting system (and not on a stand-alone system);
(d) pay its obligations in the ordinary course of business as a legal entity separate own liabilities, including all administrative expenses, from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries;
(e) keep its funds separate from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries, and will receive, deposit, withdraw and disburse such funds separately from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries;
(f) conduct its business in its own name, and not in the name of each of the Head Lessee and the Guarantor or any of their respective Subsidiariesseparate assets, except that CAC may pay the Borrower may organizational expenses of the Issuer, and (viii) pay from the Issuer's assets all obligations and indebtedness of any kind incurred by the Issuer. The Issuer shall abide by all corporate formalities, including the maintenance of current minute books, and the Issuer shall cause its financial statements to be referred prepared in accordance with generally accepted accounting principles in a manner that indicates the separate existence of the Issuer and its assets and liabilities. The Issuer shall (w) pay all its liabilities, (x) not assume the liabilities of CAC or any Affiliate of CAC, (y) not lend funds or extend credit to together CAC or any affiliate of CAC except pursuant to the Contribution Agreement in connection with the Guarantor and/or the Head Lessee in presentational, promotional or advertising materials;
purchase of Loans thereunder and (gz) not agree to pay guarantee the liabilities of CAC or become liable for any debt Affiliates of each CAC. The officers and directors of the Head Lessee Issuer (as appropriate) shall make decisions with respect to the business and the Guarantor or any of their respective Subsidiaries, other than to make payments in the form of indemnities as required by the express terms of this Agreement or the other Transaction Documents;
(h) not hold out that it is a division daily operations of the Head Lessee or the Guarantor or Issuer independent of and not dictated by any controlling entity. The Issuer shall not engage in any business not permitted by its Certificate of their respective Subsidiaries, or that the Head Lessee and the Guarantor or any of their respective Subsidiaries is a division of it;
(i) not induce any third party to rely Incorporation as in effect on the creditworthiness of the Head Lessee or the Guarantor or any of their respective Subsidiaries in order that such third party will be induced to contract with it;
(j) not enter into any transaction between it and the Head Lessee or the Guarantor or any of their respective Subsidiaries that are as a whole materially more favourable to either party 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; and
(k) observe those material corporate or other procedures reasonably required under Applicable Law and under its constitutive documents to remain a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective SubsidiariesClosing Date.
Appears in 1 contract
Samples: Note Purchase Agreement (Credit Acceptance Corporation)
Separate Business. The Borrower covenants with each of the Finance Parties that it will conduct its business so as to maintain its separate existence as a legal entity from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries and further covenants that it will:
Transferor shall at all times (a) observe those material corporate formalities reasonably necessary to remain a legal entity separate from each the extent the Transferor's office is located in the offices of Wackenhut or any Affiliate of Wackenhut, pay fair market rent for its executive office space located in the Head Lessee and the Guarantor and offices of Wackenhut or any Affiliate of their respective Subsidiaries;
Wackenhut, (b) have at all times at least two members of its board of directors which are not and have never been employees, officers or directors of Wackenhut or any Affiliate of Wackenhut or of any major creditor of Wackenhut or any Affiliate of Wackenhut and are persons who are familiar and have experience with asset securitization, (c) maintain its assets the Transferor's books, financial statements, accounting records and liabilities other corporate documents and records separate from those of each Wackenhut or any other entity, (d) not commingle the Transferor's assets with those of Wackenhut or any other entity, (e) not sell, exchange or otherwise convey any of its assets in any inter-company transactions except for fair market value in an arms length transaction approved by a majority of its board of directors (including Independent Directors, as defined in the Transferor's "Certificate of Incorporation"), (f) act solely in its corporate name and through its own authorized officers and agents, (g) make investments directly or by brokers engaged and paid by the Transferor or its agents (provided that if any such agent is an Affiliate of the Head Lessee and Transferor it shall be compensated at a fair market rate for its services), (h) separately manage the Guarantor and any of their respective Subsidiaries;
(c) maintain records, books, accounts, and minutes separate Transferor's liabilities from those of each Wackenhut or any Affiliates of the Head Lessee Wackenhut and the Guarantor and any of their respective Subsidiaries; except to the extent that the Borrower’s and/or the Head Lessee’s separate financial statements are maintained on the Guarantor’s, or the Borrower’s separate financial statements are maintained on the Head Lessee’s, accounting system (and not on a stand-alone system);
(d) pay its obligations in the ordinary course of business as a legal entity separate own liabilities, including all administrative expenses, from each of the Head Lessee and the Guarantor and any of their respective Subsidiaries;
(e) keep its funds separate from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries, and will receive, deposit, withdraw and disburse such funds separately from any funds of each of the Head Lessee and the Guarantor and any of their respective Subsidiaries;
(f) conduct its business in its own name, and not in the name of each of the Head Lessee and the Guarantor or any of their respective Subsidiariesseparate assets, except that Wackenhut may pay the Borrower may organizational expenses of the Transferor, and (i) pay from the Transferor's assets all obligations and indebtedness of any kind incurred by the Transferor. The Transferor shall abide by all corporate formalities, including the maintenance of current minute books, and the Transferor shall cause its financial statements to be referred prepared in accordance with generally accepted accounting principles in a manner that indicates the separate existence of the Transferor and its assets and liabilities. The Transferor shall (i) pay all its liabilities, (ii) not assume the liabilities of Wackenhut or any Affiliate of Wackenhut, (iii) not lend funds or extend credit to together Wackenhut or any affiliate of Wackenhut except pursuant to the Receivables Purchase Agreement in connection with the Guarantor and/or the Head Lessee in presentational, promotional or advertising materials;
purchase of Receivables thereunder and (giv) not agree to pay guarantee the liabilities of Wackenhut or become liable for any debt Affiliates of each Wackenhut. The officers and directors of the Head Lessee Transferor (as appropriate) shall make decisions with respect to the business and the Guarantor or any of their respective Subsidiaries, other than to make payments in the form of indemnities as required by the express terms of this Agreement or the other Transaction Documents;
(h) not hold out that it is a division daily operations of the Head Lessee or the Guarantor or Transferor independent of and not dictated by any controlling entity. The Transferor shall not engage in any business not permitted by its Certificate of their respective Subsidiaries, or that the Head Lessee and the Guarantor or any of their respective Subsidiaries is a division of it;
(i) not induce any third party to rely Incorporation as in effect on the creditworthiness of the Head Lessee or the Guarantor or any of their respective Subsidiaries in order that such third party will be induced to contract with it;
(j) not enter into any transaction between it and the Head Lessee or the Guarantor or any of their respective Subsidiaries that are as a whole materially more favourable to either party 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; and
(k) observe those material corporate or other procedures reasonably required under Applicable Law and under its constitutive documents to remain a legal entity separate from each of the Head Lessee and the Guarantor and any of their respective SubsidiariesClosing Date.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Wackenhut Corp)
Separate Business. The Borrower Head Lessee covenants with each of the Finance Parties that it will conduct its business so as to maintain its separate existence as a legal entity from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries and further covenants that it will:
(a) observe those material corporate formalities reasonably necessary to remain a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries;
(b) maintain its assets and liabilities separate from those of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except to the extent that the Head Lessee’s financial and operating results are consolidated with those of its ultimate parent company in consolidated financial statements;
(c) maintain records, books, accounts, and minutes separate from those of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except to the extent that the BorrowerHead Lessee’s financial and operating results are consolidated with those of its ultimate parent company in consolidated financial statements and to the extent that the Head Lessee’s and/or the Head LesseeBorrower’s separate financial statements are maintained on the Guarantor’s, or the Borrower’s separate financial statements are maintained on the Head Lessee’s, ’s accounting system (and not on a stand-alone system);
(d) pay its obligations in the ordinary course of business as a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective SubsidiariesSubsidiaries except where the Head Lessee discharges payment obligations (e.g. with respect to fees, outlays and expenses) on behalf of the Guarantor or any of its Subsidiaries which are subject to reimbursement to the Head Lessee by the Guarantor or the relevant Subsidiary;
(e) keep its funds separate from any funds of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries, and will receive, deposit, withdraw and disburse such funds separately from any funds of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except that the Head Lessee participates in certain consolidated cash management operations and services of its ultimate parent company and its Subsidiaries pursuant to which the Head Lessee’s funds are and will be collected, disbursed, allocated, accounted for and recorded as belonging to the Head Lessee;
(f) conduct its business in its own name, and not in the name of each of the Head Lessee Borrower and the Guarantor or any of their respective Subsidiaries, ; except that the Borrower may be referred to together or in connection with the Guarantor and/or the Head Lessee in may represent itself and hold itself out (or be represented or held out) as a company within the group of companies comprised of its ultimate parent company and its Subsidiaries and as the Irish Aerospace division or operation of its ultimate parent company and maintain, use or disseminate presentational, promotional or and advertising materialsmaterials to such effect;
(g) not agree to pay or become liable for any debt of each of the Head Lessee and the Guarantor or any of their respective Subsidiaries, other than to make payments in the form of indemnities as required by the express terms of this Agreement or the other Transaction Documents;
(h) not hold out that it is a division of the Head Lessee Guarantor or any of its Subsidiaries, or that the Borrower or the Guarantor or any of their respective Subsidiaries, or that the Head Lessee and the Guarantor or any of their respective Subsidiaries is a division of it;
; except that the Head Lessee may (i) not induce any third party represent itself and hold itself out (or be represented or held out) as a company within the group of companies comprised of its ultimate parent company and its Subsidiaries and as the Irish Aerospace division or operation of its ultimate parent company and maintain, use or disseminate presentational, promotional and advertising materials to rely on the creditworthiness of the such effect and (ii) have Head Lessee disregarded for tax purposes (check the box election) and considered for tax purposes a division or the Guarantor or any operation of their respective Subsidiaries in order that such third party will be induced to contract with it;
its ultimate parent company; and (j) not enter into any transaction between it and the Head Lessee or the Guarantor or any of their respective Subsidiaries that are as a whole materially more favourable to either party 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; and
(kh) observe those material corporate or other procedures reasonably required under Applicable Law and under its constitutive documents to remain a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries.
8 8.1 Guarantor covenants Guarantor covenants Until the Discharge Date in respect of the ECA Debt, the Guarantor hereby undertakes and covenants with each of the Finance Parties separately and severally from the date of this Agreement that:
(a) subject to the provisions of Clause 10 (Trigger events), it shall ensure that the terms of any Lease entered into by the Head Lessee in respect of the Aircraft relating to maintenance, insurance and operations comply with the requirements of the Head Lease and are substantially similar in substance to those which are customarily used by the Head Lessee for the leasing of similar aircraft in its portfolio and leased to lessees of similar credit standing, similar geographic location and under similar circumstances; and shall cause the Head Lessee to administer such Lease in a manner consistent with those standards applied by it with respect to its other owned and/or financed aircraft or aircraft owned or leased by any of its Subsidiaries;
(b) it shall ensure that the Head Lessee remains its wholly owned direct or indirect Subsidiary;
(c) unless it has undertaken a merger or consolidation or sale of its assets in a transaction permitted by Clause 8.2.1(d), it shall remain duly incorporated and validly existing and in good standing under the laws of the State of Delaware;
(d) at all times, it shall comply in all respects with all laws and regulations applicable to it and which are necessary in relation to the conduct of its business generally except where the failure to comply would not have a Material Adverse Effect, and it shall obtain, maintain in full force and effect and comply in all material respects with, any present or future authorisations (governmental or otherwise), approvals, licences and consents and do, or cause to be done, all other acts and things, in each case, which may from time to time be necessary for the continued due performance of its obligations under the Transaction Documents;
(e) it shall pay and discharge all Taxes and governmental charges prior to the date on which the same become overdue unless, and only to the extent that, such Taxes and charges shall be contested in good faith by appropriate proceedings, pending determination of which payment may lawfully be withheld, and there shall be set aside adequate reserves with respect to any such Taxes or charges so contested (if required in accordance with generally accepted accounting principles) except where the failure to comply would or would be likely to have a Material Adverse Effect;
(f) it shall comply with its constitutional documents;
(g) it shall ensure that at all times its obligations under the Transaction Documents rank at least pari passu with its obligations owed to all its unsecured creditors save for obligations mandatorily preferred by law.
Appears in 1 contract
Separate Business. The Borrower Head Lessee covenants with each of the Finance Parties that it will conduct its business so as to maintain its separate existence as a legal entity from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries and further covenants that it will:
(a) observe those material corporate formalities reasonably necessary to remain a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries;
(b) maintain its assets and liabilities separate from those of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except to the extent that the Head Lessee’s financial and operating results are consolidated with those of its ultimate parent company in consolidated financial statements;
(c) maintain records, books, accounts, and minutes separate from those of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except to the extent that the BorrowerHead Lessee’s financial and operating results are consolidated with those of its ultimate parent company in consolidated financial statements and to the extent that the Head Lessee’s and/or the Head LesseeBorrower’s separate financial statements are maintained on the Guarantor’s, or the Borrower’s separate financial statements are maintained on the Head Lessee’s, accounting system (and not on a stand-alone system);
(d) pay its obligations in the ordinary course of business as a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective SubsidiariesSubsidiaries except where the Head Lessee discharges payment obligations (e.g. with respect to fees, outlays and expenses) on behalf of Guarantor or any of its Subsidiaries which are subject to reimbursement to Head Lessee by Guarantor or the relevant Subsidiary;
(e) keep its funds separate from any funds of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries, and will receive, deposit, withdraw and disburse such funds separately from any funds of each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries; except that the Head Lessee participates in certain consolidated cash management operations and services of its ultimate parent company and its Subsidiaries pursuant to which the Head Lessee’s funds are and will be collected, disbursed, allocated, accounted for and recorded as belonging to the Head Lessee;
(f) conduct its business in its own name, and not in the name of each of the Head Lessee Borrower and the Guarantor or any of their respective Subsidiaries, ; except that the Borrower may be referred to together or in connection with the Guarantor and/or the Head Lessee in may represent itself and hold itself out (or be represented or held out) as a company within the group of companies comprised of its ultimate parent company and its Subsidiaries and as the Irish Aerospace division or operation of its ultimate parent company and maintain, use or disseminate presentational, promotional or and advertising materialsmaterials to such effect;
(g) not agree to pay or become liable for any debt of each of the Head Lessee and the Guarantor or any of their respective Subsidiaries, other than to make payments in the form of indemnities as required by the express terms of this Agreement or the other Transaction Documents;
(h) not hold out that it is a division of the Head Lessee Guarantor or any of its Subsidiaries, or that the Borrower or the Guarantor or any of their respective Subsidiaries, or that the Head Lessee and the Guarantor or any of their respective Subsidiaries is a division of it;
(i) not induce any third party to rely on the creditworthiness of ; except that the Head Lessee may (a) represent itself and hold itself out (or be represented or held out) as a company within the Guarantor group of companies comprised of its ultimate parent company and its Subsidiaries and as the Irish Aerospace division or any operation of their respective Subsidiaries in order that its ultimate parent company and maintain, use or disseminate presentational, promotional and advertising materials to such third party will be induced to contract with it;
effect and (jb) not enter into any transaction between it and the have Head Lessee disregarded for tax purposes (check the box election) and considered for tax purposes a division or the Guarantor or any operation of their respective Subsidiaries that are as a whole materially more favourable to either party 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 partyits ultimate parent company; and
(kh) observe those material corporate or other procedures reasonably required under Applicable Law and under its constitutive documents to remain a legal entity separate from each of the Head Lessee Borrower and the Guarantor and any of their respective Subsidiaries.
8 8.1 Guarantor covenants Guarantor covenants Until the Discharge Date in respect of the ECA Debt, the Guarantor hereby undertakes and covenants with each of the Finance Parties separately and severally from the date of this Agreement that:
(a) subject to the provisions of Clause 10 (Trigger events), it shall ensure that the terms of any Lease entered into by the Head Lessee in respect of the Aircraft relating to maintenance, insurance and operations comply with the requirements of the Head Lease and are substantially similar in substance to those which are customarily used by the Head Lessee for the leasing of similar aircraft in its portfolio and leased to lessees of similar credit standing, similar geographic location and under similar circumstances; and shall cause the Head Lessee to administer such Lease in a manner consistent with those standards applied by it with respect to its other owned and/or financed aircraft or aircraft owned or leased by any of its Subsidiaries;
(b) it shall ensure that the Head Lessee remains its wholly owned direct or indirect Subsidiary;
(c) unless it has undertaken a merger or consolidation or sale of its assets in a transaction permitted by Clause 8.2.1(d), it shall remain duly incorporated and validly existing and in good standing under the laws of the State of Delaware;
(d) at all times, it shall comply in all respects with all laws and regulations applicable to it and which are necessary in relation to the conduct of its business generally except where the failure to comply would not have a Material Adverse Effect, and it shall obtain, maintain in full force and effect and comply in all material respects with, any present or future authorisations (governmental or otherwise), approvals, licences and consents and do, or cause to be done, all other acts and things, in each case, which may from time to time be necessary for the continued due performance of its obligations under the Transaction Documents;
(e) it shall pay and discharge all Taxes and governmental charges prior to the date on which the same become overdue unless, and only to the extent that, such Taxes and charges shall be contested in good faith by appropriate proceedings, pending determination of which payment may lawfully be withheld, and there shall be set aside adequate reserves with respect to any such Taxes or charges so contested (if required in accordance with generally accepted accounting principles) except where the failure to comply would or would be likely to have a Material Adverse Effect;
(f) it shall comply with its constitutional documents;
(g) it shall ensure that at all times its obligations under the Transaction Documents rank at least pari passu with its obligations owed to all its unsecured creditors save for obligations mandatorily preferred by law.
Appears in 1 contract
