Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions: (a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby; (b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates; (c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms; (d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates; (e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements; (f) acting solely in its own limited liability company name and not that of any other Person; (g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates; (h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates; (i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents); (j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents; (k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person; (l) paying its own operating expenses and other liabilities out of its own funds; (m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation; (n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations; (o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents; (p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members; (q) correcting any known misunderstanding regarding its separate identity; (r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and (s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 6 contracts
Samples: Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.)
Separateness. Each Since its date of the Members and the Managing Member acknowledges that formation, the Company is (i) has not entered into any contract or agreement with any of its affiliates, constituents, or owners, or any guarantors of any of its obligations (each an “Affiliate”) or any person or entity in control of any Affiliate, under the same common control as any Affiliate, or under the control of any Affiliate (each a “Related Affiliate Party”) except upon terms and conditions that are commercially reasonable and substantially similar to those available in an arm’s-length transaction with an unrelated party, (ii) has paid all of its debts and liabilities from its assets, (iii) has done or caused to be formed done all things necessary to observe all organizational formalities applicable to it and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect preserve its existence, rights (iv) has maintained all of its books, records, financial statements and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, bank accounts separate from those of each Member and any other person or entity, (v) has not had its assets listed as assets on the financial statement of their respective officers and Affiliates;
any other person or entity, (cvi) conducting has filed all material transactions between tax returns required to be filed by the Company and is not part of a consolidated group for U.S. federal income tax purposes or been included in a consolidated U.S. federal income tax return with any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
other person or entity, (dvii) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliateshas been, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining at all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding times has held itself out to the public as as, a legal entity separate and distinct from any other Personperson or entity (including any Affiliate or other Related Affiliate Party), including the Members;
(qviii) correcting has corrected any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself status as a department or division separate entity, (ix) has conducted all of any Member its business and held all of its assets in its own name, (x) has not identified itself or any of such Member’s respective officers and Affiliates. The failure its Affiliates as a division or part of the Company other, (xi) has maintained and utilized separate stationery, invoices and checks bearing its own name, (xii) has not commingled its assets with those of any other person or entity and has held all of its assets in its own name, (xiii) has not guaranteed or become obligated for the debts of any other Person, (xiv) has not held itself out as being responsible for the debts or obligations of any other person or entity, (xv) has allocated fairly and reasonably any overhead expenses that have been shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate or Related Affiliate Party, (xvi) has not pledged its assets to comply secure the obligations of any other person or entity and no such pledge remains outstanding except in connection with the Loan, (xvii) has maintained adequate capital in light of its contemplated business operations, (xviii) has not owned any subsidiary or any equity interest in any other entity, (xix) has not incurred any indebtedness that is still outstanding other than indebtedness that will be discharged at Closing and trade payables in the ordinary course, and (xx) has not had any of its obligations guaranteed by an Affiliate or other Related Affiliate Party, except for guarantees that have been either released or discharged (or that will be discharged as a result of the foregoing provisions closing of this Section 8.6 the acquisition). References to the “knowledge” of Seller refer only to the current actual knowledge of Xxxxx X. Xxxxxx and Xxxx Xxxxxx without any duty of inquiry or investigation and shall not affect be construed, by imputation or otherwise, to refer to the status knowledge of Seller or any affiliate of Seller, to any property manager or to any other officer, agent, manager, representative or employee of Seller or any affiliate thereof. Seller represents and warrants that Xxxxx X. Xxxxxx and Xxxx Xxxxxx are the representatives of Seller that have primary responsibility to oversee the Company’s management of the Company as a separate legal Person or Property and are the limited liability representatives of Seller who are most likely to have knowledge at the Seller level regarding the subject matter of the Members, or their respective Affiliatesrepresentations and warranties regarding the Property set forth in Section 3.1 above.
Appears in 5 contracts
Samples: Interest Purchase and Sale Agreement (Independence Realty Trust, Inc), Interest Purchase and Sale Agreement (Independence Realty Trust, Inc), Interest Purchase and Sale Agreement (Independence Realty Trust, Inc)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Administrative Agent may from time to time reasonably request, to maintain the Borrower’s identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(c) to the extent necessary for the operation of its business, (i) fail to maintain an email address not used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower’s own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) either (i) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or (ii) make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than monthly or otherwise, in certain other irregular cases, in accordance with appropriate corporate formalities and consistent with sound business judgment;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or dissolve, granting terminate or suffering liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case, to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated extent permitted by law, the Customer Agreements and the Transaction Documents)Administrative Agent’s consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower’s certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Obligations;
(n) fail to remain Solvent; provided, that this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Credit Party or any general partner, member, principal or Affiliate of any other Credit Party, except with the Administrative Agent’s consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of the Company, any other Credit Party, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of the Company and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(sy) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(z) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(aa) acquire obligations or securities of its partners, members, shareholders or other Affiliates. The failure , as applicable;
(bb) violate or cause to be violated the assumptions made with respect to the Borrower in any opinion letter pertaining to substantive consolidation delivered to the Lenders in connection with the Credit Documents;
(cc) fail to have Organizational Documents that provide that, so long as the Obligations of the Company Borrower shall be outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Borrower, or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Director; and
(dd) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with any respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower;
(ee) fail to observe all requisite organizational formalities under Delaware law. In the event of any inconsistency between the covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.6 or the limited liability of the Membersother covenants set forth in this Agreement, or their respective Affiliatesin the event that any covenant set forth in this Section 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.6 shall control.
Appears in 5 contracts
Samples: Revolving Credit Agreement (OppFi Inc.), Revolving Credit Agreement (OppFi Inc.), Revolving Credit Agreement (OppFi Inc.)
Separateness. Each (a) Except as provided in the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring securities of the Member, any Indebtedness ofSpecial Member, the Members any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting The Company shall correct any known misunderstanding regarding its separate identity;
(r) not forming. Failure of the Company, acquiring or holding the Member, any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Consumers Funding LLC), Limited Liability Company Agreement (Consumers Funding LLC), Limited Liability Company Agreement (Pse&g Transition Funding LLC)
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
; (o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.), Limited Liability Company Agreement (Vivint Solar, Inc.)
Separateness. Each of the The Members and the Managing Member acknowledges agree that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Project Company to maintain its existence are separate and distinct from any other Personentities and that the Company shall conduct, and cause the Project Company to conduct, their respective affairs in a manner intended to maintain such status, including taking without limitation adhering the following actionsfollowing:
(a) maintaining in full effect its existenceThe Company has not formed, rights acquired or held and franchises as a limited liability company under shall not form, acquire or hold any subsidiary, except for the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyProject Company;
(b) maintaining The Company does not have, shall not have and at no time had any assets other than its own deposit accounts, separate from those membership interests in the Project Company and personal property necessary or incidental to its ownership of each Member and any of their respective officers and Affiliatessuch membership interests;
(c) conducting The Company has not engaged in, sought, consented or permitted to and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all material transactions between the Company and any or substantially all of its Affiliates on an armassets or any sale of assets outside the ordinary course of its business, except in each case as permitted by (i) this Company LLC Agreement and, (ii) any transfer of the Company’s length basis and on commercially reasonable termsmembership interests in connection with the transactions described in the ECCA;
(d) allocating fairly and reasonably the cost of The Company shall not incur any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesadditional debt or contingent liabilities except as permitted by this Company LLC Agreement;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and The Company shall not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its commingle assets with those of any other Personentity and shall hold its assets in its own name;
(lf) paying The Company shall conduct its own operating expenses business in its own name;
(g) The Company shall maintain bank accounts (if any), books, records and financial statements separate from any other person or entity;
(h) The Company shall observe all formalities of the Company LLC Agreement;
(i) The Company shall pay its own liabilities out of its own funds;
(mj) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining The Company shall maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(k) The Company shall use separate stationery, invoices and checks;
(l) The Company shall pay the salaries of its own employees, if any;
(m) The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others, in each case, other than the Project Company;
(n) The Company shall not make any loans to any other person or entity other than in accordance with this Company LLC Agreement;
(o) not acquiring obligations or the securities of The Company shall allocate fairly and reasonably any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsoverhead for shared office space;
(p) holding itself out to The Company shall not pledge its assets for the public as a legal entity separate and distinct from benefit of any other Personentity, including other than the Members;Project Company or the Project; and
(q) correcting The Company shall hold itself out as a separate entity, with the exception that the Company shall not be considered a separate entity from the Project Company for federal, state, and local income tax purposes, and shall use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp)
Separateness. Each of the Members The Company and the Managing Member acknowledges that the Company is to be formed and operated its Subsidiaries, as a special purpose entityconsolidated group, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionseach at all times:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be observe all applicable entity procedures necessary to protect the validity maintain its separate existence and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsformalities, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;including:
(i) not creating, granting maintain minutes or suffering to exist any Liens (other than Permitted Liens) on property records of meetings of the members and/or managers of the Company (except as contemplated by the Customer Agreements and the Transaction Documents)its Subsidiaries;
(jii) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting act on behalf of itself only pursuant to due authorizationauthorization of the members and/or managers, required hereby including, when applicable, any independent managers or members; and
(iii) conduct its own business in its own name and by the Certificate of Formationthrough authorized agents pursuant to its Constitutional Documents;
(nb) maintaining adequate capital allocate fairly and reasonably any shared expenses, including overhead for shared office space or common employees (if any);
(c) use separate stationery, invoices and checks bearing its own name;
(d) prepare and maintain its own full and complete books, accounting records (including books of account and payroll, if any) and other documents and records, in each case which are separate and apart from the books, accounting records and other documents and records of the Sponsor or any Affiliate thereof;
(e) maintain separate bank accounts in its own name or otherwise pursuant to the Finance Documents and make all investments by or on behalf of the Company and its Subsidiaries solely in its name except as otherwise provided by the Finance Documents;
(f) separate its property and not allow funds or other assets to be commingled with the funds and other assets of, held by, or registered in the name of the Sponsor or any Affiliate thereof, and maintain its assets in such a manner that it is not costly or difficult to identify or ascertain such assets, all except to the extent otherwise provided by the Finance Documents;
(g) not hold itself out as being liable for the normal debts of the Sponsor or any Affiliate thereof and not guarantee the debts of the Sponsor or any Affiliate thereof except as permitted by the Finance Documents;
(h) not acquire or assume obligations reasonably foreseeable or securities of, or make loans or advances to, any of its Affiliates except as required under the Finance Documents;
(i) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, and not have its assets listed on the balance sheet of any other Person; provided that such Obligor may also report its financial statements on a consolidated or combined basis with one or more of its Affiliates in accordance with GAAP so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Company and its Subsidiaries from such Affiliate(s) and to disclose the separate nature of the Company and its Subsidiaries indebtedness;
(j) prepare and file its own tax returns separate from those of any Person except to the extent that the Company and its Subsidiaries is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law;
(k) pay its own liabilities and expenses out of its own assets (except as provided under the Finance Documents);
(l) pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operationsoperations (either directly or through contractual arrangements to provide such services that such employees would provide) and not permit its employees, if any, to participate in or receive payroll benefits or pension plans of or from any of its Affiliates;
(m) maintain adequate capitalization in light of its contemplated business and obligations;
(n) hold itself out to third parties as a legal entity, separate and distinct and independent from any other entity, conduct its own business solely under its name and correct any known misunderstanding as to the separateness of the Obligors from any other Person;
(o) not acquiring obligations procure that the Company shall have an independent director or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction manager appointed in accordance with its Constitutional Documents;; and
(p) holding itself out to the public as a legal entity separate have and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to maintain Constitutional Documents which comply with any of the foregoing provisions requirements of this Section 8.6 4.40; provided that no limitation in this Section shall not affect the status of apply to the Company and its Subsidiaries as a separate legal Person or the limited liability of the Members, or their respective Affiliatesamong one another.
Appears in 3 contracts
Samples: Indenture (Cheniere Corpus Christi Holdings, LLC), Indenture (Cheniere Corpus Christi Holdings, LLC), Indenture (Cheniere Corpus Christi Holdings, LLC)
Separateness. Each of the The Members and the Managing Member acknowledges agree that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Project Company to maintain its existence are separate and distinct from any other Personentities and that the Company shall conduct, and cause the Project Company to conduct, their respective affairs in a manner intended to maintain such status, including taking without limitation adhering the following actionsfollowing:
(a) maintaining in full effect its existenceThe Company has not formed, rights acquired or held and franchises as a limited liability company under shall not form, acquire or hold any subsidiary, except for the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyProject Company;
(b) maintaining The Company does not have, shall not have and at no time had any assets other than its own deposit accounts, separate from those membership interests in the Project Company and personal property necessary or incidental to its ownership of each Member and any of their respective officers and Affiliatessuch membership interests;
(c) conducting The Company has not engaged in, sought, consented or permitted to and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all material transactions between the Company and any or substantially all of its Affiliates on an armassets or any sale of assets outside the ordinary course of its business, except in each case as permitted by (i) this Company LLC Agreement and, (ii) any transfer of the Company’s length basis and on commercially reasonable termsmembership interests in connection with the transactions described in the ECCA;
(d) allocating fairly and reasonably the cost of The Company shall not incur any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesadditional debt or contingent liabilities except as permitted by this Company LLC Agreement;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and The Company shall not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its commingle assets with those of any other Personentity and shall hold its assets in its own name;
(lf) paying The Company shall conduct its own operating expenses business in its own name;
(g) The Company shall maintain bank accounts (if any), books, records and financial statements separate from any other person or entity;
(h) The Company shall observe all formalities of the Company LLC Agreement;
(i) The Company shall pay its own liabilities out of its own funds;
(mj) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining The Company shall maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(k) The Company shall use separate stationery, invoices and checks;
(1) The Company shall pay the salaries of its own employees, if any;
(m) The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others, in each case, other than the Project Company;
(n) The Company shall not make any loans to any other person or entity other than in accordance with this Company LLC Agreement;
(o) not acquiring obligations or the securities of The Company shall allocate fairly and reasonably any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsoverhead for shared office space;
(p) holding itself out to The Company shall not pledge its assets for the public as a legal entity separate and distinct from benefit of any other Personentity, including other than the Members;Project Company or the Project; and
(q) correcting The Company shall hold itself out as a separate entity, with the exception that the Company shall not be considered a separate entity from the Project Company for federal, state, and local income tax purposes, and shall use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp), Limited Liability Company Agreement (Bloom Energy Corp)
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to will at all times:
(i) maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company and remain in good standing under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of Delaware;
(ii) observe all limited liability company procedures required by this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyAct;
(biii) maintaining ensure that (A) its own deposit accountsbusiness is at all times managed by or under the direction of the Board of Managers, (B) the Board of Managers has authorized all actions requiring authorization and (C) when required by law or by this Agreement, it has obtained authorization for action from its Member;
(iv) maintain its books, financial statements and other documents and records separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of Member, its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of or any other Person;
(gv) ensure that its assets are not holding commingled with those of the Member or its Affiliates, and not hold itself out as having agreed to pay or Guarantee, or as otherwise being liable for, for the obligations debts of any Member and any of such Member’s respective officers and Affiliatesanother;
(hvi) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness ofmaintain its bank accounts and books of account separate from those of its Affiliates, the Members Member or their respective Affiliates;
(i) not creating, granting the Member’s Affiliates or suffering to exist any Liens (other than Permitted Liens) on property of Person or entity; and ensure that its funds and other assets will at all times be readily distinguishable from the Company (except as contemplated by the Customer Agreements funds and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all assets of its assets in Affiliates, the Member and its own name and not commingling its assets with those of Affiliates or any other Person;
(lvii) paying act solely in its own operating expenses name and other liabilities out of through its own fundsmanagers and agents so as not to mislead others about its identity or the identity of any Affiliate and correct any known misunderstanding about its separate identity, and conduct all oral and written communications, solely in its own name;
(mviii) observing all limited liability company formalitiesseparately manage its liabilities from those of the Member and its Affiliates and pay its own liabilities, including maintaining meeting minutes all administrative expenses, from its own assets, except that (A) the Member or record meeting its Affiliates may pay some of the organizational costs of the Company, and acting on behalf the Company will reimburse the Member or its Affiliate for its allocable portion of itself only pursuant to due authorization, required hereby and shared expenses paid by the Certificate of FormationMember or its Affiliate and (B) the Member may pay fees and expenses and indemnify parties under Section 2.5(c);
(nix) maintaining maintain arm’s length relationships with its Affiliates;
(x) not create, incur or assume any indebtedness, other than the Securities and other obligations permitted under the Basic Documents, unless the indebtedness is rated by each Rating Agency then rating the outstanding Securities at the request of the Member or the Company, or unless the Rating Agency Condition is satisfied;
(xi) not create, incur or assume any indebtedness or issue any security or sell or transfer any Receivables or Underlying ABS to a Trust or other Person which issues a security relating to the receivables or Underlying ABS unless the debt or security holders agree or are considered to have agreed that, before the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of all of the debt or securities of the Company and all of the debt or securities issued through the Trusts, they will not to start or pursue, or join any other Person in starting or pursuing, against the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law;
(xii) operate so that it would not be substantively consolidated for purpose of applicable bankruptcy laws with another entity;
(xiii) have a sufficient number of Managers and other authorized agents to manage its operations; and
(xiv) maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Ford Credit Auto Receivables Two LLC), Limited Liability Company Agreement (Ford Credit Auto Receivables Two LLC), Limited Liability Company Agreement (Ford Credit Auto Receivables Two LLC)
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existenceThe Company has not formed, rights acquired or held and franchises as a limited liability company under shall not form, acquire or hold any subsidiary, except for MWCI and the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyProject Company;
(b) maintaining The Company does not have, shall not have and at no time had any assets other than its own deposit accounts, separate from those membership interests in MWCI and personal property necessary or incidental to its ownership of each Member and any of their respective officers and Affiliatessuch membership interests;
(c) conducting The Company has not engaged in, sought, consented or permitted to and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all material transactions between the Company and any or substantially all of its Affiliates on an armassets or any sale of assets outside the ordinary course of its business, except in each case as permitted by (i) this Company LLC Agreement and, (ii) any transfer of the Company’s length basis and on commercially reasonable termsmembership interests in connection with the transactions described in the Contribution Agreement;
(d) allocating fairly and reasonably the cost of The Company shall not incur any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesadditional debt or contingent liabilities except as permitted by this Company LLC Agreement;
(e) conducting The Company shall not consent to or permit any amendment of the Company LLC Agreement or its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;formation documents or other organizational documents with respect to the matters set forth in this Section 3.15.
(f) acting solely The Company shall not commingle assets with those of any other entity and shall hold its assets in its own limited liability company name and not that of any other Personname;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and AffiliatesThe Company shall conduct its own business in its own name;
(h) not making The Company shall maintain bank accounts (if any), books, records and financial statements in accordance with generally accepted accounting principles and separate from any loans other person or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliatesentity;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property The Company shall observe all formalities of the Company LLC Agreement;
(except as contemplated i) The Company shall pay its own liabilities out of its own funds (which may include Working Capital Loans, payments made or capital contributed by the Customer Agreements and the Transaction DocumentsMembers pursuant to ARTICLE IV);
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining shall maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(i) The Company shall use separate stationery, invoices and checks;
(k) The Company shall maintain an arm’s-length relationships with its Affiliates;
(l) The Company shall pay the salaries of its own employees, if any;
(m) The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others, in each case, other than MWCI or the Project Company;
(n) The Company shall not make any loans to any other person or entity other than in accordance with this Company LLC Agreement;
(o) not acquiring obligations or the securities of The Company shall allocate fairly and reasonably any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsoverhead for shared office space;
(p) holding itself out to The Company shall not pledge its assets for the public as a legal entity separate and distinct from benefit of any other Personentity, including other than MWCI, the Members;Project Company or the Project; and
(q) correcting The Company shall hold itself out as a separate entity, with the exception that the Company shall not be considered separate entities from MWCI or the Project Company for federal, state, and local income tax purposes, and not fail to correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (First Wind Holdings Inc.), Limited Liability Company Agreement (First Wind Holdings Inc.)
Separateness. Each of (i) The Seller shall at all times maintain at least one independent director (x) who is not currently and has not been during the Members and five years preceding the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability date of this Agreement an officer, director or employee of an Affiliate of the Seller or any Other Company, (y) is not a current or former officer or employee of the Seller and each other instrument (z) is not a stockholder of any Other Company or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;.
(cii) conducting all material transactions between The Seller shall not direct or participate in the Company and any management of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;Other Companies’ operations.
(kiii) maintaining The Seller shall conduct its business from an office separate from that of the Other Companies (but which may be located in the same facility as one or more of the Other Companies). The Seller shall have stationery and other business forms and a mailing address and a telephone number separate from that of the Other Companies.
(iv) The Seller shall at all times be adequately capitalized in light of its assets in its own name and not commingling its assets with those of any other Person;contemplated business.
(lv) paying The Seller shall at all times provide for its own operating expenses and other liabilities out of from its own funds;.
(mvi) observing all limited liability company formalities, including maintaining meeting minutes or record meeting The Seller shall maintain its assets and acting on behalf transactions separately from those of itself only pursuant to due authorization, required hereby the Other Companies and reflect such assets and transactions in financial statements separate and distinct from those of the Other Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding Other Companies. The Seller shall hold itself out to the public under the Seller’s own name as a legal entity separate and distinct from the Other Companies. The Seller shall not hold itself out as having agreed to pay, or as being liable, primarily or secondarily, for, any other Person, including obligations of the Members;Other Companies.
(qvii) correcting The Seller shall not maintain any known misunderstanding regarding its separate identity;joint account with any Other Company or become liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Other Company.
(rviii) The Seller shall not formingmake any payment or distribution of assets with respect to any obligation of any Other Company or grant an Adverse Claim on any of its assets to secure any obligation of any Other Company.
(ix) The Seller shall not make loans, acquiring advances or holding otherwise extend credit to any subsidiaries of the Other Companies.
(x) The Seller shall hold regular duly noticed meetings of its Board of Directors and make and retain minutes of such meetings.
(xi) The Seller shall have bills of sale (or similar instruments of assignment) and, if appropriate, UCC-1 or PPSA financing statements or other appropriate registrations, with respect to all assets purchased from any of the Other Companies.
(xii) The Seller shall not engage in any transaction with any of the Other Companies, except as permitted by this Agreement and as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesOriginator Purchase Agreement.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (AbitibiBowater Inc.), Receivables Purchase Agreement (AbitibiBowater Inc.)
Separateness. Each Except for financial reporting purposes (to the extent required by GAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and corporation business tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Members Company as a separate legal entity and the Managing Member acknowledges to make it apparent to third Persons that the Company is to be formed an entity with assets and operated as a special purpose entityliabilities distinct from those of the Member, distinct and separate from any Affiliates of the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking and that the following actionsCompany is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner:
(a) maintaining Except as provided in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable forBasic Documents, the obligations of any Member funds and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other Person;, and the Company shall maintain its accounts separate from the Member and any other Person.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other Person, and shall conduct its own operating expenses business in its own name.
(c) The Company shall not form, or cause to be formed, any subsidiaries.
(d) The Company shall act solely in its limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity or assets with which they are concerned and (except as provided in the Basic Documents) shall at all times maintain its assets in a manner that facilitates their identification and segregation from those of the Member or any of its Affiliates or any other Person.
(e) The Company shall practice and adhere to organizational formalities, such as maintaining separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of the Member or any of its Affiliates or any other Person.
(f) The Managers shall act by written consent or hold appropriate meetings to authorize all of the Company’s limited liability company actions, which meetings may be held by telephone conference call or by electronic transmission. The Company shall observe all formalities required by this Agreement.
(g) The Company shall at all times remain solvent and ensure that its capitalization is adequate in light of its business and purpose, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company.
(h) Neither the Member nor any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member, any Manager, any Affiliate of the foregoing or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any Person other than the Trustee for the benefit of the Holders of the Environmental Control Bonds, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or any Affiliate of the foregoing.
(i) The Company shall pay its own liabilities out of its own funds;, including fees and expenses earned by Allegheny Energy Service Corporation, as administrator, pursuant to the Administration Agreement, Mon Power, as servicer, pursuant to the Servicing Agreement and MP Funding, as Seller, pursuant to the Sale Agreement, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company.
(j) The Company shall maintain an arm’s-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably, on market-based terms, any overhead for office space shared with the Member, any Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms distinct from those of the Member or any of its Affiliates or any other Person.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding The Company shall hold itself out to the public as a legal separate entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;.
(n) The Company shall not engage in any activity other than (i) those activities expressly permitted under this Agreement and the Basic Documents to which it is a party, nor will the Company enter into any agreement other than those necessary to fulfill the purposes of the Company as described in Section 2.03 hereof and such other agreements that are permitted by the Basic Documents and are necessary or desirable for the Company to exercise its rights and perform its obligations under such Basic Documents and this Agreement and (ii) those activities reasonable and necessary to undertake an offering of Additional Securities, as authorized by the PSCWV.
(o) To the fullest extent permitted by law, the Company shall make all decisions with respect to its business and daily operations independently and in the Company’s best interest without obligation or reference to how such decision might affect any other Person, including the Member or any of its Affiliates; provided, that the officer making any particular decision may also be an employee, officer or director of the Member, any other member, or any of their respective Affiliates.
(p) The Company shall maintain office space separate from the office space of the Member, any other member and any of their respective Affiliates (but which may be located at the same address).
(q) The Company shall allocate, on an arm’s-length basis, all shared corporate operating services, leases and expenses and otherwise maintain an arm’s-length relationship with the Member, any other members and any of their respective Affiliates.
(r) The Company, without the consent of the Independent Managers, shall not formingfile or otherwise initiate or support the filing of a motion in any Bankruptcy or other insolvency proceeding involving the Member, acquiring any other member or holding any subsidiaries (except as contemplated by of their respective Affiliates to substantively consolidate the Customer Agreements Member or Transaction Documents); andany Affiliate of the Member with the Company.
(s) The Company shall not identifying itself as a department acquire obligations or division securities of the Member, any other member or any of their respective Affiliates. Failure of the Company, the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (MP Environmental Funding LLC), Limited Liability Company Agreement (MP Environmental Funding LLC)
Separateness. Each The Borrower shall not:
(i) have any employees other than a single employee in Georgia; provided, that, the Borrower may enter into the Servicing Agreement with the Servicer to the effect that the employees of such entity shall act on behalf of the Members and Borrower; provided that such employees shall at all times hold themselves out to third parties as representatives of the Managing Member acknowledges that Borrower while performing duties under such service agreement (including, without limitation, by means of providing such persons with business or identification cards identifying such employees as agents of the Company is to be formed and operated Borrower);
(ii) act as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from an agent for any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(biii) maintaining commingle its own deposit accounts, separate from funds or other assets with those of each Member any other Person and shall not maintain bank accounts or other depository accounts to which any of their respective officers and Affiliatesother Person is an account party, into which any other Person makes deposits or from which any other Person has the power to make withdrawals;
(civ) conducting all material transactions permit any other Person to pay any of the Borrower’s operating expenses unless such operating expenses are paid by such Person pursuant to an agreement between the Company Borrower and any such other Person providing for the allocation of its Affiliates on an armsuch expenses and such expenses are reimbursed by the Borrower out of the Borrower’s length basis and on commercially reasonable termsown funds;
(dv) allocating fairly and reasonably the cost of consent to be liable for, or hold itself out to be responsible for any shared overhead expensesmoney borrowed by, including office spaceor any Indebtedness incurred by, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(evi) conducting its affairs separately from those of each Member and its officers and Affiliatesassume, and maintaining accurate and separate booksguarantee, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that become obligated for, pay, or hold itself out to be responsible for, the debts or obligations of any other Person;
(gvii) not holding itself out acquire obligations or securities of its Affiliates other than its acquisition of participations in loans, as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliatescontemplated by this Agreement;
(hviii) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant hold out its credit to any of Person as available to satisfy the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those obligation of any other Person;
(lix) paying pledge its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital assets for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities benefit of any Member other entity or make any of such Member’s officers and Affiliates, loans or advances to any Person or entity except as required under provided in this Agreement and the Customer Agreements or Transaction other Loan Documents;
(px) holding itself out buy or hold evidence of Indebtedness issued by any of its Affiliates;
(xi) permit less than one member of the Borrower’s Board of Directors or Board of Managers (the “Independent Manager”) to be an individual who has not been, (a) a direct or indirect legal or beneficial owner in the public Borrower or any of its Affiliates, (b) a creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower or its Affiliates, (b) a creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower or its Affiliates (other than as an independent manager for such entity), or (c) a Person who control (whether directly, indirectly, or otherwise) the Borrower or its Affiliates (other than as an independent manager for such entity);
(xii) permit the Independent Manager at any time to serve as a legal entity separate and distinct from trustee in bankruptcy for the Borrower, the Service, the Originator or any Affiliate thereof;
(xiii) identify itself as a division of any other Person, including the Members;; or
(qxiv) correcting any known misunderstanding regarding enter into agreements with its separate identity;
(r) Affiliates or agreements with third parties that in the aggregate would be material, if such agreements do not formingcontain the provision that such Affiliates or third parties, acquiring in their respective capacities as counterparties under such agreements, will not seek to initiate bankruptcy or holding any subsidiaries (except as contemplated by insolvency proceedings in respect of the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and AffiliatesBorrower. The failure Borrower shall include the provision described in the preceding sentence (or a substantially similar provision) in all agreements with third parties, to the extent practicable without interfering with the conduct of the Company to comply with any business affairs of the foregoing provisions Borrower, and take into consideration the willingness of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesthird parties to enter into agreements containing such provision.
Appears in 2 contracts
Samples: Financing Agreement (Imperial Holdings, LLC), Financing Agreement (Imperial Holdings, LLC)
Separateness. Each of Notwithstanding anything herein to the Members and the Managing Member contrary, Borrower acknowledges that each Lender is entering into the Company is to be formed and operated transactions contemplated by this Agreement in reliance upon Borrower’s identity as a special purpose entity, distinct and legal entity separate from any Member or each of its Affiliates. AccordinglyTherefore, from and after the Managing Member date hereof, Borrower shall cause the Company take all reasonable steps to maintain its existence continue Borrower’s identity as a separate legal entity and to make it apparent to third Persons that Borrower is an entity with assets and liabilities distinct from those of any of its Affiliates and any other Person, including taking and is not a division of any Affiliate or any other Person. Without limiting the following actionsgenerality of the foregoing, each Loan Party shall take such actions as shall be required in order that:
(a) maintaining in full effect its existence, rights Borrower’s books and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or records shall be necessary to protect the validity and enforceability maintained separately from those of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyany of its Affiliates;
(b) maintaining Borrower shall maintain and utilize separate stationery, invoices and checks, shall otherwise conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely business in its own limited liability company name name, and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(rc) Borrower shall allocate fairly and reasonably any expenses which Borrower shares with any other Person, including shared office space and services;
(d) All financial statements of any Affiliates of Borrower that are consolidated or combined to include Borrower shall contain detailed notes clearly stating that (i) all of Borrower’s assets are owned by Borrower, and (ii) Borrower is a separate entity with creditors who have not formingreceived security interests in Borrower’s assets;
(e) Borrower’s assets shall be maintained in a manner that facilitates their identification and segregation from those of any of its Affiliates;
(f) Borrower shall strictly observe corporate formalities in its dealings with any of its Affiliates, acquiring and funds or holding other assets of Borrower shall not be commingled or pooled with those of any subsidiaries (except as contemplated by the Customer Agreements of its Affiliates. Borrower shall not maintain joint bank accounts or Transaction Documents)other depository accounts to which any of its Affiliates has independent access; and
(sg) not identifying itself as a department or division Borrower shall maintain arm’s-length relationships with each of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective its Affiliates.
Appears in 2 contracts
Samples: Loan and Security Agreement (Offerpad Solutions Inc.), Loan and Security Agreement (Supernova Partners Acquisition Company, Inc.)
Separateness. Each of (i) The Borrower shall at all times maintain at least one Independent Manager who (x) is not currently and has not been during the Members and five years preceding the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability date of this Agreement an officer, director or employee of an Affiliate of the Borrower or any Other Company, (y) is not a current or former officer or employee of the Borrower, and each other instrument (z) is not a stockholder of any Other Company or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;; provided that the Independent Manager may be an Affiliate of the Special Manager.
(cii) conducting all material transactions between The Borrower shall not direct or participate in the Company and management of any Other Company’s operations; provided the foregoing shall not affect TIN’s right to participate in the management of its Affiliates on an armOther Company’s length basis and on commercially reasonable terms;operations.
(diii) allocating fairly and reasonably the cost of any shared overhead expenses, including The Borrower shall conduct its business from an office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately separate from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any Other Company (but which may be located in the same facility as one or more Other Company). The Borrower shall use separate stationery, invoices and checks and other Person;business forms and a mailing address separate from that of any Other Company.
(giv) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Borrower shall at all times be adequately capitalized in light of any Member and any of such Member’s respective officers and Affiliates;its contemplated business.
(hv) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining The Borrower shall at all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying times provide for its own operating expenses and other liabilities out of from its own funds;.
(mvi) observing all limited liability company formalities, including maintaining meeting minutes or record meeting The Borrower shall maintain its assets and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities transactions separately from those of any Member or Other Company and reflect such assets and transactions in financial statements separate and distinct from those of any Other Company and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding any Other Company. The Borrower shall hold itself out to the public under the Borrower’s own name as a legal entity separate and distinct from any other PersonOther Company. The Borrower shall not hold itself out as having agreed to pay, including the Members;or as being liable, primarily or secondarily, for, any obligations of any Other Company.
(qvii) correcting The Borrower shall not maintain any known misunderstanding regarding its separate identity;joint account with any Other Company or become liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Other Company.
(rviii) The Borrower shall not formingmake any payment or distribution of assets with respect to any obligation of any Other Company or grant an Adverse Claim on any of its assets to secure any obligation of any Other Company.
(ix) The Borrower shall not make loans, acquiring advances or holding otherwise extend credit to any subsidiaries Other Company.
(x) The Borrower shall hold regular duly noticed meetings of its members and make and retain minutes of such meetings.
(xi) The Borrower shall have bills of sale (or similar instruments of assignment) and, if appropriate, UCC-1 financing statements, with respect to all assets purchased from any Other Company.
(xii) The Borrower shall not engage in any transaction with any Other Company, except as permitted by this Agreement and as contemplated by the Customer Agreements or Transaction Documents); andSale and Contribution Agreement.
(sxiii) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of Borrower shall take all reasonable steps to maintain the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company its identity as a separate legal Person or entity, including maintaining in place all policies and procedures and taking all action, described in the limited liability factual assumptions set forth in the opinion letter of Sxxxxxxxxx Xxxxxx & Bxxxxxx LLP, delivered on the Membersdate hereof, or their respective Affiliatesaddressing the issues of substantive consolidation as they may relate to the Borrower on the one hand and TIN on the other hand.
Appears in 2 contracts
Samples: Term Loan Agreement (Temple Inland Inc), Term Loan Agreement (Temple Inland Inc)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. At all times, including taking the following actions:
(a) maintaining in full effect its existence, rights all funds and franchises as a limited liability company under the laws assets of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or Company shall be necessary to protect separately identifiable from those of the validity and enforceability of this Agreement and each Member or any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Person.
(b) maintaining The Company shall maintain its own deposit accountsproperty and assets in such a way that it is not difficult or costly to segregate, separate identify and ascertain its property and assets as distinct from those the property and assets of each Member and any of their respective officers and Affiliates;other Person.
(c) conducting all material transactions between The Company shall not guarantee or otherwise hold itself out as being liable for the Company debts of any other entity, and any of shall conduct its Affiliates on an arm’s length basis and on commercially reasonable terms;own business in its own name.
(d) allocating fairly and reasonably the cost of The Company shall not form, or cause to be formed, any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;subsidiaries.
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(f) The Company shall maintain separate records (financial and otherwise), books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(g) not holding itself out as having agreed The Managers shall hold appropriate meetings to pay or Guaranteeauthorize all of the Company’s limited liability company actions, or as otherwise being liable forwhich meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the obligations of any Member Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement and any applicable law, and shall keep and maintain records of such Member’s respective officers meetings and Affiliates;compliance.
(h) The Company shall at all times ensure that its capitalization is adequate (and never unreasonably small) in light of its business, purpose and expected activities; provided, however, that this provision shall not making require the Member to make any loans or extending any Indebtedness to, or acquiring any Indebtedness of, additional capital contribution to the Members or their respective Affiliates;Company.
(i) not creatingNeither the Member, granting any Special Member nor any Manager, officer or suffering to exist any Liens (other than Permitted Liens) Affiliate of the Company shall guarantee, become liable on property or hold itself out as being liable for the debts of the Company (except provided that the foregoing shall not prohibit the Member from causing to be issued one or more letters of credit or other credit support in favor of the Trustee in respect of any losses it or any of its officers, directors, employees, representatives or agents may incur in its capacity as Trustee, Transition Bond Registrar, authenticating agent or Paying Agent (as defined in the Indenture), in connection with the transactions contemplated by the Customer Agreements and the Transaction Basic Documents);. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company’s obligations under any Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or officer or any Affiliate thereof.
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement. If and to the extent that any amount is drawn under a letter of credit or other credit support referred to in the parenthetical at the end of the first clause of paragraph (i) of this Section 2.09, such amount will not constitute any amount owing by the Company to the Member or any other Person; rather, to the extent that the Member has provided or made available such a letter of credit or other credit support, and an amount is so drawn, such amount will be treated by the Member and the Company as a capital contribution by the Member to the Company.
(k) The Company shall maintain an arm’s-length relationship with the Member and its other Affiliates.
(l) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall allocate fairly and reasonably any overhead for office space shared with the Member, including maintaining meeting minutes any Special Member or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;any Manager.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall use its contemplated own separate taxpayer identification number, stationery, invoices, checks and other business operations;forms.
(o) not acquiring obligations or the securities The Company shall conduct all of its business in its own name and shall correct any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;known misunderstanding regarding its separate identity.
(p) holding The Company shall treat all outstanding Transition Bonds as debt except where a contrary treatment is required by applicable law or by GAAP.
(q) The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;.
(r) The Company shall file its own tax returns, if any, as may be required under applicable law, to the extent (a) not formingpart of a consolidated group filing a consolidated return or returns or (b) not treated as a disregarded entity for tax purposes of another taxpayer, acquiring or holding and pay any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); andtaxes so required to be paid under applicable law.
(s) not identifying itself The Company shall treat the transfer of the Transition Property from the Member to the Company as a department sale under the Public Utility Regulatory Act. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager or officer on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (CenterPoint Energy Transition Bond Co IV, LLC), Limited Liability Company Agreement (CenterPoint Energy Transition Bond Co IV, LLC)
Separateness. Each (i) The Borrower will at all times have at least one "manager" (as defined in the Borrower's limited liability agreement as in effect on the date hereof) who will be (x) a natural person and (y) a Person who (A) shall not have been at the time of such Person's appointment, and may not have been at any time during the preceding five years and shall not be as long as such Person is a manager of the Members Borrower (i) a director, member, officer, manager, partner, shareholder or employee of the Parent Guarantor, any Originator or any of their respective directors, members, partners, Subsidiaries, shareholders or Affiliates other than the Borrower and the Managing Member acknowledges Transferor (collectively, the "Independent Parties"), (ii) a supplier to any of the Independent Parties, (iii) a person controlling or under common control with any directors, members, partners, shareholder or supplier of any of the Independent Parties or (iv) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three years of employment experience with one or more entities that provide, in the Company is ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Borrower will at all times have sufficient personnel and/or duly compensated agents to run its business and operations and will compensate its employees (if any) and agents from its own available funds for services provided to it. In the event employees of the Borrower participate in pension, insurance and other benefit plans of any Independent Party, the Borrower will on a current basis reimburse such Independent Party for its pro rata share of the costs thereof.
(iii) The Borrower will pay its own liabilities out of its own funds and assets.
(iv) The Borrower will maintain a separate office (a) which if leased from any Independent Party will be formed on terms no more or less favorable to the Borrower than could be obtained in a comparable arm's-length transaction with an unaffiliated Person and operated (b) which will be conspicuously identified as the Borrower's office so it can be easily located by outsiders. The Borrower will use its own electronic mail address, stationery, invoices, checks and telephone and facsimile numbers.
(v) The Borrower will hold itself out and identify itself as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct entity under its own name and not as a division or part of any other Person.
(vi) The Borrower will promptly correct any misunderstanding of which it has knowledge regarding its separate existence and identity.
(vii) The Borrower will prepare and maintain its own full and complete books, records and financial statements separate from any other Person, including taking the following actions:. The Borrower's financial statements will comply with generally accepted accounting principles.
(aviii) maintaining The Borrower will maintain at least one bank account in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;own name.
(bix) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material All business transactions between entered into by the Company and Borrower with any of its Affiliates will be on an arm’s terms that are intrinsically fair and not more or less favorable to the Borrower, as the case may be, than terms and conditions available at the time to the Borrower for comparable arm's-length basis and on commercially reasonable terms;transactions with unaffiliated Persons, it being understood that the Transaction Documents satisfy the provisions of this paragraph (ix).
(dx) allocating fairly and reasonably the cost The Borrower will not assume or guarantee or become obligated for debts of any shared overhead expensesIndependent Party and no Independent Party will assume or guarantee or become obligated for the debts of the Borrower, including office space, with other than as provided in the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting Transaction Documents. The Borrower will not hold its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself credit out as having agreed being available to pay or Guarantee, or as otherwise being liable for, satisfy the obligations of any Member and any of such Member’s respective officers and Affiliates;other Persons.
(hxi) The Borrower will not making acquire obligations or securities of any loans Independent Party The Borrower will not make loans, advances or extending otherwise extend credit to any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (Independent Party except as expressly contemplated by the Customer Agreements Originator Purchase Agreements, the Transfer Agreement and the European Loan Agreement.
(xii) Except to the extent provided in the Transaction Documents);, the Borrower will not commingle any of its money or other assets with the money or assets of any other entity. The Borrower will ensure that its funds will be clearly traceable at each step in any financial transaction.
(jxiii) not acquiring any asset The Borrower will engage in transactions and conduct all other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets business activities solely in its own name and not commingling through its assets with those own authorized officers and agents and will present itself to the public as a separate company. Except to the extent provided in the Transaction Documents, no Independent Party will be appointed agent of any other Person;the Borrower.
(lxiv) paying its own operating expenses and other liabilities out The Borrower will not engage in any transaction with any of its own funds;Affiliates involving any intent to hinder, delay or defraud any Person.
(mxv) observing The Borrower will observe all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;.
(nxvi) maintaining adequate capital for The Borrower will take, or refrain from taking, as the normal obligations reasonably foreseeable case may be, all other actions that are necessary to be taken or not to be taken in light of its contemplated business operations;
order to (ox) not acquiring obligations or ensure that the securities of any Member or any of such Member’s officers assumptions and Affiliates, except as required under factual recitations set forth in the Customer Agreements or Transaction Documents;
(p) holding itself out Specified Bankruptcy Opinion Provisions remain true and correct with respect to the public as a legal entity separate Borrower and distinct from any other Person, including the Members;
(qy) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of those procedures described in such provisions which are applicable to the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesBorrower.
Appears in 2 contracts
Samples: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed Administrative Agent and operated the Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, including taking from and after the following actionsClosing Date, the Borrower shall take all reasonable steps to maintain each Relevant Party’s identity as a separate legal entity from each other Person and to make it manifest to third parties that the Relevant Parties are separate legal entities. Without limiting the generality of the foregoing, the Borrower agrees that it shall not, and shall not permit any Subsidiary to:
(a) maintaining fail to hold all of its assets in full effect its existence, rights own name; [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and franchises as a limited liability company under filed separately with the laws of the State of Delaware Securities and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Exchange Commission. 118 TLA CREDIT AGREEMENT
(b) maintaining except for payments made to a General Account governed by the terms of the Management Agreement, commingle its own deposit accounts, separate from those assets with the assets of each Member and any of their respective officers and its members, Affiliates, principals or any other Person;
(c) conducting all material transactions between maintain books, records and agreements as official records and separate from those of the Company members, principals and Affiliates or any of its Affiliates on an arm’s length basis and on commercially reasonable termsother Person;
(d) allocating fairly maintain its bank accounts separate from the members, principals and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that Affiliates of any other Person;
(e) other than the Transaction Documents and as otherwise expressly permitted by Section 8.16, enter into any Affiliate Transaction;
(f) fail to maintain separate Financial Statements from those of its general partners, members, principals, Affiliates or any other Person; provided, however, that the Relevant Parties financial position, assets, liabilities, net worth and operating results may be included in the consolidated Financial Statements of Sponsor, provided that (i) appropriate notation shall be made on such consolidated Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Sponsor and each Relevant Party maintain separate books and records and to indicate that none of the Relevant Parties’ Assets and credit are not available to satisfy the debts and other obligations of the Sponsor or any other Person and (ii) such Assets and liabilities shall be listed on each Relevant Party’s own separate balance sheet;
(g) not holding itself out as having agreed fail to pay promptly correct any known or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliatessuspected misunderstanding regarding its separate identity;
(h) not making any loans maintain its Assets in such a manner that it will be costly or extending any Indebtedness todifficult to segregate, ascertain or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of identify its individual assets in its own name and not commingling its assets with from those of any other Person;
(i) guarantee or become obligated, or hold itself as responsible, for the debts of any other Person, except under the Guaranty and Security Agreement or the Guaranty and Pledge Agreement;
(j) hold out its credit as being available to satisfy the obligations of any other Person, except under the Guaranty and Security Agreement or the Guaranty and Pledge Agreement;
(k) make any loans or advances to any third party, including any member, principal or Affiliate of the Borrower, or any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) paying pledge its own operating expenses and assets for the benefit of any other liabilities out of its own fundsPerson, except as expressly permitted under the Loan Documents;
(m) observing all limited liability company formalities, including maintaining meeting minutes identify itself or record meeting hold itself out as a division of any other Person or conduct any business in another name; [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and acting on behalf of itself only pursuant to due authorization, required hereby filed separately with the Securities and by the Certificate of Formation;
Exchange Commission. 119 TLA CREDIT AGREEMENT (n) maintaining fail to maintain adequate capital for the normal obligations reasonably foreseeable in light of its current and contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 2 contracts
Samples: Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.)
Separateness. Each Except for financial reporting purposes (to the extent required by GAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and corporation business tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Members Company as a separate legal entity and the Managing Member acknowledges to make it apparent to third Persons that the Company is to be formed an entity with assets and operated as a special purpose entityliabilities distinct from those of the Member, distinct and separate from any Affiliates of the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking and that the following actionsCompany is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner:
(a) maintaining Except as provided in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable forBasic Documents, the obligations of any Member funds and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other Person;, and the Company shall maintain its accounts separate from the Member and any other Person.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other Person, and shall conduct its own operating expenses business in its own name.
(c) The Company shall not form, or cause to be formed, any subsidiaries.
(d) The Company shall act solely in its limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity or assets with which they are concerned and (except as provided in the Basic Documents) shall at all times maintain its assets in a manner that facilitates their identification and segregation from those of the Member or any of its Affiliates or any other Person.
(e) The Company shall practice and adhere to organizational formalities, such as maintaining separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of the Member or any of its Affiliates or any other Person.
(f) The Managers shall act by written consent or hold appropriate meetings to authorize all of the Company’s limited liability company actions, which meetings may be held by telephone conference call or by electronic transmission. The Company shall observe all formalities required by this Agreement.
(g) The Company shall at all times remain solvent and ensure that its capitalization is adequate in light of its business and purpose, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company.
(h) Neither the Member nor any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member, any Manager, any Affiliate of the foregoing or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any Person other than the Trustee for the benefit of the Holders of the Environmental Control Bonds, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or any Affiliate of the foregoing.
(i) The Company shall pay its own liabilities out of its own funds;, including fees and expenses earned by Allegheny Energy Service Corporation, as administrator, pursuant to the Administration Agreement, Potomac Edison, as servicer, pursuant to the Servicing Agreement and PE Funding, as Seller, pursuant to the Sale Agreement, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company.
(j) The Company shall maintain an arm’s-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably, on market-based terms, any overhead for office space shared with the Member, any Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms distinct from those of the Member or any of its Affiliates or any other Person.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding The Company shall hold itself out to the public as a legal separate entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;.
(n) The Company shall not engage in any activity other than (i) those activities expressly permitted under this Agreement and the Basic Documents to which it is a party, nor will the Company enter into any agreement other than those necessary to fulfill the purposes of the Company as described in Section 2.03 hereof and such other agreements that are permitted by the Basic Documents and are necessary or desirable for the Company to exercise its rights and perform its obligations under such Basic Documents and this Agreement and (ii) those activities reasonable and necessary to undertake an offering of Additional Securities, as authorized by the PSCWV.
(o) To the fullest extent permitted by law, the Company shall make all decisions with respect to its business and daily operations independently and in the Company’s best interest without obligation or reference to how such decision might affect any other Person, including the Member or any of its Affiliates; provided, that the officer making any particular decision may also be an employee, officer or director of the Member, any other member, or any of their respective Affiliates.
(p) The Company shall maintain office space separate from the office space of the Member, any other member and any of their respective Affiliates (but which may be located at the same address).
(q) The Company shall allocate, on an arm’s-length basis, all shared corporate operating services, leases and expenses and otherwise maintain an arm’s-length relationship with the Member, any other members and any of their respective Affiliates.
(r) The Company, without the consent of the Independent Managers, shall not formingfile or otherwise initiate or support the filing of a motion in any Bankruptcy or other insolvency proceeding involving the Member, acquiring any other member or holding any subsidiaries (except as contemplated by of their respective Affiliates to substantively consolidate the Customer Agreements Member or Transaction Documents); andany Affiliate of the Member with the Company.
(s) The Company shall not identifying itself as a department acquire obligations or division securities of the Member, any other member or any of their respective Affiliates. Failure of the Company, the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (PE Environmental Funding LLC), Limited Liability Company Agreement (MP Environmental Funding LLC)
Separateness. Each of Notwithstanding anything herein to the Members and the Managing Member contrary, Borrower acknowledges that each Lender is entering into the Company is to be formed and operated transactions contemplated by this Agreement in reliance upon Xxxxxxxx’s identity as a special purpose entity, distinct and legal entity separate from any Member or each of its Affiliates. AccordinglyTherefore, from and after the Managing Member date hereof, Borrower shall cause the Company take all reasonable steps to maintain its existence continue Borrower’s identity as a separate legal entity and to make it apparent to third Persons that Borrower is an entity with assets and liabilities distinct from those of any of its Affiliates and any other Person, including taking and is not a division of any Affiliate or any other Person. Without limiting the following actionsgenerality of the foregoing, each Loan Party shall take such actions as shall be required in order that:
(a) maintaining in full effect its existence, rights Xxxxxxxx’s books and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or records shall be necessary to protect the validity and enforceability maintained separately from those of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyany of its Affiliates;
(b) maintaining Borrower shall maintain and utilize separate stationery, invoices and checks, shall otherwise conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely business in its own limited liability company name name, and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(rc) Borrower shall allocate fairly and reasonably any expenses which Borrower shares with any other Person, including shared office space and services;
(d) All financial statements of any Affiliates of Borrower that are consolidated or combined to include Borrower shall contain detailed notes clearly stating that (i) all of Borrower’s assets are owned by Xxxxxxxx, and (ii) Borrower is a separate entity with creditors who have not formingreceived security interests in Borrower’s assets;
(e) Borrower’s assets shall be maintained in a manner that facilitates their identification and segregation from those of any of its Affiliates;
(f) Borrower shall strictly observe corporate formalities in its dealings with any of its Affiliates, acquiring and funds or holding other assets of Borrower shall not be commingled or pooled with those of any subsidiaries (except as contemplated by the Customer Agreements of its Affiliates. Borrower shall not maintain joint bank accounts or Transaction Documents)other depository accounts to which any of its Affiliates has independent access; and
(sg) not identifying itself as a department or division Borrower shall maintain arm’s-length relationships with each of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective its Affiliates.
Appears in 2 contracts
Samples: Loan and Security Agreement (Offerpad Solutions Inc.), Loan and Security Agreement (Offerpad Solutions Inc.)
Separateness. Each The Seller shall be operated in such a manner that the separate corporate existence of the Members Seller and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member Motor Coach or its Affiliates. Accordingly, Affiliates (the Managing Member shall cause "MOTOR COACH ENTITIES") would not be disregarded in the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as event of a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is bankruptcy or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost insolvency of any shared overhead expensesMotor Coach Entity, including office spaceand, with without limiting the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;foregoing:
(i) not creating, granting the Seller shall at all times be a limited purpose corporation whose activities are restricted as set forth in its certificate or suffering to exist any Liens articles of incorporation;
(other than Permitted Liensii) on property no Motor Coach Entity shall be involved in the day-to-day management of the Company Seller (except as to the extent expressly contemplated by the Customer Agreements and the Transaction Documentsthis Agreement or any other Related Document);
(jiii) not acquiring any asset other than any asset conveyed the purchase of Receivables and Vehicles from the Transferors pursuant to the Company pursuant to any Transfer Agreements, the payment of the Customer Agreements or Transaction Documents or purchased by Servicer Fees to the Company Servicer and other transactions permitted under this Agreement, the Seller shall not engage in accordance any intercorporate transactions with the Customer Agreements or Transaction Documentsany Motor Coach Entity;
(kiv) maintaining all the Seller shall maintain separate corporate records and books of its assets in its own name account from each Motor Coach Entity, hold regular corporate meetings and not commingling its assets with those otherwise observe corporate formalities and have separate office space from each Motor Coach Entity, if any;
(v) the financial statements and books and records of Motor Coach and of any other Personentity whose financial statements are consolidated with the Seller prepared after the Initial Closing Date shall reflect the separate corporate existence of the Seller;
(lvi) paying its own operating expenses the Seller shall not act as agent for any Motor Coach Entity and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding shall hold itself out to the public as a legal entity corporation separate and distinct from any other Person, including the Memberseach such Motor Coach Entity;
(qvii) correcting the Seller shall maintain at least two independent directors each of whom, at all times after the Initial Closing Date, shall be an individual who (i) is in fact independent of the Seller, (ii) does not have, and never has had, any known misunderstanding regarding direct financial interest or any material indirect financial interest in the Seller or in any Affiliate of the Seller and (iii) is not, and never has been, connected as an officer, employee, promoter, underwriter, trustee, partner, director, creditor, supplier, family member, manager or contractor or person performing similar functions within the Seller or any Affiliate of the Seller or as a Person who, directly, indirectly or otherwise, controls any such individual, entity or its separate identityaffiliates;
(rviii) the Seller shall maintain its assets separately from the assets of any Motor Coach Entity (including through the maintenance of separate bank accounts and except for any Records to the extent necessary for the servicing of the Receivables); the Seller's funds and assets, and records relating thereto, shall not forming, acquiring or holding be commingled with those of any subsidiaries Motor Coach Entity; and the separate creditors of the Seller will be entitled to be satisfied out of the Seller's assets prior to any value in the Seller becoming available to the Seller's equity holders;
(ix) except as expressly contemplated by under this Agreement and the Customer Agreements Related Documents and those associated with the creation and organization of the Seller and the preparation of this Agreement and the Related Documents, no Motor Coach Entity shall (A) pay the Seller's expenses; (B) guarantee the Seller's obligations, or Transaction Documents)(C) advance funds to the Seller for the payment of expenses or otherwise; and
(sx) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure all business correspondence of the Company to comply with any of Seller and other communications shall be conducted in the foregoing provisions of this Section 8.6 shall not affect the status of the Company as Seller's own name, on its own stationery and through a separate legal Person or the limited liability of the Members, or their respective Affiliates.separately-listed telephone number; and
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Motor Coach Industries International Inc), Receivables Purchase Agreement (Motor Coach Industries International Inc)
Separateness. Each of the Members The Borrower acknowledges that each Agent and the Managing Member acknowledges that the Company is to be formed and operated Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, including taking from and after the following actionsClosing Date, the Borrower shall take all reasonable steps to maintain each Relevant Party’s identity as a separate legal entity from each other Person and to make it manifest to third parties that the Relevant Parties are separate legal entities. Without limiting the generality of the foregoing, the Borrower agrees that it shall not, and shall not permit any Subsidiary to:
(a) maintaining fail to hold all of its assets in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyown name;
(b) maintaining except for payments made to a General Account governed by the terms of the Management Agreement, commingle its own deposit accounts, separate from those assets with the assets of each Member and any of their respective officers and its members, Affiliates, principals or any other Person;
(c) conducting all material transactions between fail to maintain books, records and agreements as official records and separate from those of the Company members, principals and Affiliates or any of its Affiliates on an arm’s length basis and on commercially reasonable termsother Person;
(d) allocating fairly fail to maintain its bank accounts separate from the members, principals and reasonably the cost Affiliates of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(e) conducting its affairs separately from those of each Member other than the Transaction Documents and its officers and Affiliatesas otherwise expressly permitted by Section 7.16, and maintaining accurate and separate books, records and accounts and financial statementsenter into any Affiliate Transaction;
(f) acting fail to maintain separate Financial Statements from those of its general partners, members, principals, Affiliates or any other Person; provided, however, that the Relevant Parties financial position, assets, liabilities, net worth and operating results may be included in the consolidated Financial Statements of Sponsor, provided that (i) appropriate notation shall be made on such consolidated Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Sponsor and each Relevant Party maintain separate books and records and to indicate that none of the Relevant Parties’ Assets and credit are not available to satisfy the debts and other obligations of the Sponsor or any other Person and (ii) such Assets and liabilities shall be listed on each Relevant Party’s own separate balance sheet;
(g) fail to promptly correct any known or suspected misunderstanding regarding its separate identity;
(h) 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;
(i) guarantee or become obligated, or hold itself as responsible, for the debts of any other Person, except under any Holdco Guaranty and Security Agreement or any Wholly Owned Opco Guaranty and Security Agreement; [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(j) hold out its credit as being available to satisfy the obligations of any other Person, except under any Holdco Guaranty and Security Agreement or any Wholly Owned Opco Guaranty and Security Agreement;
(k) make any loans or advances to any third party, including any member, principal or Affiliate of the Borrower, or any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) pledge its assets for the benefit of any other Person, except as expressly permitted under the Loan Documents;
(m) identify itself or hold itself out as a division of any other Person or conduct any business in another name;
(n) fail to maintain adequate capital in light of its current and contemplated business operations;
(o) fail to act solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed , any of its officers or any of their respective Affiliates, and fail to pay or Guaranteeat all times use its own stationery, or as otherwise being liable for, the obligations invoices and checks separate from those of any Member and other Person, any of such Member’s respective its officers and Affiliates;
(h) not making or any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or of their respective Affiliates;
(ip) not creatingacquire obligations or securities of its members, granting or suffering to exist any Liens (shareholders of other than Permitted Liens) on property of the Company (except Affiliates, as contemplated by the Customer Agreements and the Transaction Documents)applicable;
(jq) not acquiring take any asset other than action that knowingly shall cause any asset conveyed Relevant Party to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documentsbecome insolvent;
(kr) maintaining all fail to keep minutes of its assets in its own name and not commingling its assets with those the actions of the member of any Relevant Party and observe all limited liability company and other Personorganizational formalities;
(ls) paying fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with respect to each Relevant Party consistently and in furtherance of the foregoing and in the best interests of each Relevant Party;
(t) fail to pay its own operating liabilities and expenses (including, as applicable, shared personnel and other liabilities overhead expenses) only out of its own funds;, except as otherwise expressly provided by the Loan Documents in respect of the Wholly Owned Opcos; or
(mu) observing all fail at any time to have an independent director of Borrower or Pledgor (as defined in the applicable limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure agreement of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company Borrower or Pledgor, as a separate legal Person or the limited liability of the Members, or their respective Affiliatesapplicable).
Appears in 2 contracts
Samples: Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.)
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliatesother Person;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on a commercially reasonable termsbasis;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, any other Person and maintaining accurate and separate books, records and accounts and financial statements, it being agreed that performance of its obligations under the Transaction Documents, Project Documents and Financing Documents shall not result in the Company contravening this Section 2.6(d);
(fe) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable forand at all times using its own stationery, the obligations invoices and checks separate from those of any Member and other Person, any of such Member’s respective its officers and Affiliates;
(h) not making or any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or of their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(kf) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(lg) paying its own operating expenses and other liabilities out of its own funds;
(mh) observing all limited liability company formalities, including maintaining meeting minutes or record meeting records of meetings and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(ni) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;; and
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(pj) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Soluna Holdings, Inc), Limited Liability Company Agreement (Soluna Holdings, Inc)
Separateness. Each (a) Except as provided in the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Member, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, the Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, the Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, the Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring any Indebtedness ofsecurities of the Member, the Members Special Member, any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, the Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting The Company shall correct any known misunderstanding regarding its separate identity;.
(rn) not formingFailure of the Company, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member, the Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, the Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (PSE&G Transition Funding II LLC), Limited Liability Company Agreement (PSE&G Transition Funding II LLC)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company Lender is to be formed and operated entering into this Agreement in reliance upon the Borrower's identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actionsLender may from time to time reasonably request, to maintain the Borrower's identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not:
(a) maintaining engage, either directly or indirectly, in full effect any business or activity other than the acquisition, ownership, financing and disposition of the Receivables in accordance with the Credit Documents and the Related Agreements and activities incidental thereto;
(b) acquire or own any material asset other than the Collateral and proceeds thereof;
(c) merge into or consolidate with any Person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its existenceassets or change its legal structure, rights without in each case, to the extent permitted by law, the Administrative Agent's consent;
(d) fail to preserve its existence as an entity duly organized, validly existing and franchises as a limited liability company in good standing (if applicable) under the laws of the State jurisdiction of Delaware and obtaining and preserving its qualification formation, or without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or fail to do business comply with the provisions of the Borrower's certificate of formation, or its limited liability company agreement, as the case may be; provided, however, the Borrower may amend its operating agreement without the Administrative Agent's consent (i) to cure any ambiguity, (ii) with respect to administrative matters, or (iii) to convert or supplement any provision in each jurisdiction in which such qualification is or shall be necessary to protect a manner consistent with the validity and enforceability intent of this Agreement and each or the other instrument Credit Documents or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and AffiliatesRelated Agreements;
(e) conducting its affairs separately from those own any Subsidiary or make any investment in, any Person or entity without the consent of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statementsthe Administrative Agent;
(f) acting solely in commingle its own limited liability company name assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(g) incur any Indebtedness except the Obligations and not that Indebtedness with respect to any Interest Rate Agreement required hereby;
(h) fail to remain Solvent;
(i) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(gj) not holding itself out except for the Credit Documents and the Related Agreements, and as having agreed to pay otherwise expressly permitted by the Credit Documents, enter into any contract or Guaranteeagreement with any general partner, member, principal or Affiliate of the Borrower, CPS, or as otherwise being liable forany general partner, member, principal or Affiliate thereof, except with the obligations of any Member Administrative Agent's consent and any of such Member’s respective officers upon terms and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering conditions that are intrinsically fair and substantially similar to exist any Liens (other than Permitted Liens) those that would be available on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset an arms-length basis with third parties other than any asset conveyed to the Company pursuant to any general partner, member, principal or affiliate of the Customer Agreements Borrower, CPS, or Transaction Documents any general partner, member, principal or purchased by Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, the Company Borrower's financial position, assets, liabilities, net worth and operating results may be included in accordance with the Customer Agreements or Transaction Documentsconsolidated financial statements of CPS and its Affiliates; provided that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of CPS;
(k) maintaining all seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(l) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(m) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital except as provided in the Credit Documents, assume or guaranty the debts of any other Person, hold itself out to be responsible for the normal debts of any other Person, or otherwise pledge its assets for the benefit of any other Person or hold out its credit as being available to satisfy the obligations reasonably foreseeable in light of its contemplated business operationsany other Person;
(o) not acquiring obligations except as provided in the Credit Documents, make any loans or advances to any third party, including any general partner, member, principal or affiliate of the securities of any Member Borrower, or any of such Member’s officers and Affiliatesgeneral partner, except as required under the Customer Agreements member, principal or Transaction DocumentsAffiliate thereof;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(q) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations;
(r) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(s) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(t) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(u) acquire obligations or securities of its partners, members, shareholders of other Affiliates. The failure , as applicable;
(v) violate or cause to be violated the assumptions made with respect to the Borrower in any opinion letter pertaining to substantive consolidation delivered to the Lender in connection with the Credit Documents;
(w) [Reserved];
(x) fail to have Organizational Documents that provide that, so long as the Obligations of the Company Borrower shall be outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Borrower or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Manager;
(y) fail to observe all requisite organizational formalities under Delaware law;
(z) account for or treat (whether in financial statements or otherwise) the transactions contemplated by the Purchase Agreement in any manner other than the sale of the Receivables to the Borrower or in any other respect account for or treat the transactions contemplated therein in any manner other than as a sale of Receivables to the Borrower; provided, that the Receivables may be reflected on the consolidated balance sheets of CPS in accordance with GAAP.
(aa) make any revision or amendment to the Purchase Agreement without the consent of the Administrative Agent; and
(bb) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower. In the event of any inconsistency between the covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.8 or the limited liability of the Membersother covenants set forth in this Agreement, or their respective Affiliatesin the event that any covenant set forth in this Section 5.8 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.8 shall control.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Consumer Portfolio Services Inc), Revolving Credit Agreement (Consumer Portfolio Services Inc)
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to will at all times:
(i) maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company and remain in good standing under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of Delaware;
(ii) observe all limited liability company procedures required by this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyAct;
(biii) maintaining ensure that (A) its own deposit accountsbusiness is at all times managed by or under the direction of the Board of Managers, (B) the Board of Managers has authorized all actions requiring authorization and (C) when required by law or by this Agreement, it has obtained authorization for action from its Member;
(iv) maintain its books, financial statements and other documents and records separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of Member, its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of or any other Person;
(gv) ensure that its assets are not holding commingled with those of the Member or its Affiliates, and not hold itself out as having agreed to pay or Guarantee, or as otherwise being liable for, for the obligations debts of any Member and any of such Member’s respective officers and Affiliatesanother;
(hvi) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness ofmaintain its bank accounts and books of account separate from those of its Affiliates, the Members Member or their respective Affiliates;
(i) not creating, granting its Affiliates or suffering to exist any Liens (other than Permitted Liens) on property of Person or entity; and ensure that its funds and other assets will at all times be readily distinguishable from the Company (except as contemplated by the Customer Agreements funds and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all assets of its assets in Affiliates, the Member and its own name and not commingling its assets with those of Affiliates or any other Person;
(lvii) paying act solely in its own operating expenses name and other liabilities out of through its own fundsmanagers and agents so as not to mislead others about its identity or the identity of any Affiliate and correct any known misunderstanding about its separate identity, and conduct all oral and written communications, solely in its own name;
(mviii) observing all limited liability company formalitiesseparately manage its liabilities from those of the Member and its Affiliates and pay its own liabilities, including maintaining meeting minutes all administrative expenses, from its own assets, except that (A) the Member or record meeting its Affiliates may pay some of the organizational costs of the Company, and acting on behalf the Company will reimburse the Member or its Affiliates for its allocable portion of itself only pursuant to due authorization, required hereby and shared expenses paid by the Certificate of FormationMember or its Affiliates and (B) the Member or its Affiliates may pay fees and expenses and indemnify parties under Section 2.5(c);
(nix) maintaining maintain arm’s length relationships with its Affiliates;
(x) not create, incur or assume any indebtedness or issue any security unless the debt or security holders agree or are deemed to have agreed that, before the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of all of the debt or securities of the Company and all of the Securities they will not to start or pursue against, or join any other Person in starting or pursuing against, the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law;
(xi) operate so that it would not be substantively consolidated for purposes of applicable bankruptcy laws with another entity;
(xii) have a sufficient number of Managers and other authorized agents to manage its operations; and
(xiii) maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (CAB East LLC), Limited Liability Company Agreement (CAB East LLC)
Separateness. Each (i) The Transferor will at all times have at least one "manager" (as defined in the Transferor's limited liability agreement as in effect on the date hereof) who will be (x) a natural person and (y) a Person who (A) shall not have been at the time of such Person's appointment, and may not have been at any time during the preceding five years and shall not be as long as such Person is a manager of the Members Transferor (i) a director, member, officer, manager, partner, shareholder or employee of the Performance Guarantor or any Originator or any of their respective directors, members, partners, Subsidiaries, shareholders or Affiliates other than the Transferor or the Transferee (collectively, the "Independent Parties"), (ii) a supplier to any of the Independent Parties, (iii) a person controlling or under common control with any directors, members, partners, shareholder or supplier of any of the Independent Parties or (iv) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three years of employment experience with one or more entities that provide, in the Managing Member acknowledges that ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Transferor will at all times have sufficient personnel to run its business and operations and will compensate its employees (if any) from its own available funds for services provided to it. In the Company is event employees of the Transferor participate in pension, insurance and other benefit plans of any Independent Party, the Transferor will on a current basis reimburse such Independent Party for its pro rata share of the costs thereof.
(iii) The Transferor will pay its own liabilities out of its own funds and assets.
(iv) The Transferor will maintain a separate office (a) which if leased from any Independent Party will be on terms no more or less favorable to the Transferor than could be formed obtained in a comparable arm's-length transaction with an unaffiliated Person and operated (b) which will be conspicuously identified as the Transferor's office so it can be easily located by outsiders. The Transferor will use its own electronic mail address, stationery, invoices, checks and telephone and facsimile numbers.
(v) The Transferor will hold itself out and identify itself as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct entity under its own name and not as a division or part of any other Person.
(vi) The Transferor will promptly correct any misunderstanding of which it has knowledge regarding its separate existence and identity.
(vii) The Transferor will prepare and maintain its own full and complete books, records and financial statements separate from any other Person, including taking the following actions:. The Transferor's financial statements will comply with generally accepted accounting principles.
(aviii) maintaining The Transferor will maintain a bank account in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;name.
(bix) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material All business transactions between entered into by the Company and Transferor with any of its Affiliates will be on an arm’s terms that are intrinsically fair and not more or less favorable to the Transferor, as the case may be, than terms and conditions available at the time to the Transferor for comparable arm's-length basis and on commercially reasonable terms;transactions with unaffiliated Persons, it being understood that the Transaction Documents satisfy the provisions of this paragraph (ix).
(dx) allocating fairly and reasonably the cost The Transferor will not assume or guarantee or become obligated for debts of any shared overhead expensesIndependent Party and no Independent Party will assume or guarantee or become obligated for the debts of the Transferor, including office space, with other than as provided in the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting Transaction Documents. The Transferor will not hold its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself credit out as having agreed being available to pay or Guarantee, or as otherwise being liable for, satisfy the obligations of any Member and any of such Member’s respective officers and Affiliates;other Persons.
(hxi) The Transferor will not making acquire obligations or securities of any loans Independent Party. The Transferor will not make loans, advances or extending otherwise extend credit to any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (Independent Party except as expressly contemplated by the Customer Agreements North American Originator Purchase Agreement and the European Loan Agreement.
(xii) Except to the extent provided in the Transaction Documents);, the Transferor will not commingle any of its money or other assets with the money or assets of any other entity. The Transferor will ensure that its funds will be clearly traceable at each step in any financial transaction.
(jxiii) not acquiring any asset The Transferor will engage in transactions and conduct all other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets business activities solely in its own name and not commingling through its assets with those own authorized officers and agents and will present itself to the public as a separate company. Except to the extent provided in the Transaction Documents, no Independent Party will be appointed agent of any other Person;the Transferor.
(lxiv) paying its own operating expenses and other liabilities out The Transferor will not engage in any transaction with any of its own funds;Affiliates involving any intent to hinder, delay or defraud any Person.
(mxv) observing The Transferor will observe all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;.
(nxvi) maintaining adequate capital for The Transferor will take, or refrain from taking, as the normal obligations reasonably foreseeable case may be, all other actions that are necessary to be taken or not to be taken in light of its contemplated business operations;
order to (ox) not acquiring obligations or ensure that the securities of any Member or any of such Member’s officers assumptions and Affiliates, except as required under factual recitations set forth in the Customer Agreements or Transaction Documents;
(p) holding itself out Specified Bankruptcy Opinion Provisions remain true and correct with respect to the public as a legal entity separate Transferor and distinct from any other Person, including the Members;
(qy) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of those procedures described in such provisions which are applicable to the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesTransferor.
Appears in 2 contracts
Samples: Transfer Agreement (TRW Automotive Inc), Transfer Agreement (TRW Automotive Inc)
Separateness. Each of the Members and the Managing Member Seller acknowledges that the Company Purchaser is to be formed and operated entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliateseach of the Originators and their respective other Affiliates (each, a “Related Entity”). Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsSeller will:
(ai) maintaining in full effect maintain its existence, rights books and franchises as a limited liability company under the laws of the State of Delaware records and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, bank accounts separate from those of each Member and any of their respective officers and Affiliatesother Related Entity;
(cii) conducting at all material transactions between times hold itself out to the Company public and all other Persons as a legal entity separate from its member and any of its Affiliates on an arm’s length basis and on commercially reasonable termsother Person;
(diii) allocating fairly and reasonably the cost have a board of any shared overhead expenses, including office space, with the Managing Member and the Class B Members managers separate from that of its member and any of their respective officers and Affiliatesother Person;
(eiv) conducting file its affairs separately from those own tax returns, if any, as may be required under applicable law, to the extent (1) not part of each Member and its officers and Affiliatesa consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and maintaining accurate pay any taxes so required to be paid under applicable law;
(v) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate books, records and accounts and existence;
(vi) maintain separate financial statements;
(fvii) acting solely maintain an arm’s length relationship with each other Related Entity;
(viii) except as contemplated herein or in any other Transaction Document, not pledge its own limited liability company name and not that assets for the benefit of any other Person;
(gix) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(rx) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(xi) cause its board of managers to keep minutes of any meetings and actions and observe all other Delaware limited liability company formalities;
(xii) not formingacquire any securities of its member;
(xiii) act solely in its own name and through its own authorized managers, acquiring or holding any subsidiaries (members, officers and agents, except as contemplated by expressly permitted under the Customer Agreements or Transaction Documents); and
(sxiv) not identifying itself as a department or division of any Member or any of such Member’s respective officers cause its managers, officers, agents and Affiliates. The failure of the Company other representatives to comply act at all times with any respect to Seller consistently and in furtherance of the foregoing provisions and in the best interests of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesSeller.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Sensient Technologies Corp), Receivables Purchase Agreement (Sensient Technologies Corp)
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company Borrower shall:
(i) strictly comply with all organizational formalities necessary to maintain its existence separate and distinct existence;
(ii) have a board of directors, board of managers, or similar management body that is separate from that or those of any other Person, including taking provided that the following actions:
(a) maintaining in full effect its existencePersons who serve on such board of directors, rights and franchises as a limited liability company under the laws board of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is managers, or shall similar management body need not be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebydifferent individuals;
(biii) maintaining conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting business solely in its own limited liability company name and in a manner not that misleading to other Persons as to its identity (without limiting the generality of the foregoing, all oral and written communications (if any), including letters, invoices, purchase orders, contracts, statements, and applications shall be made solely in the name of such Borrower, as applicable, if related to such Borrower, and to correct any known misunderstanding regarding its separate identity;
(iv) provide for the payment of its own operating expenses and liabilities from its own funds and not the funds of any other Person;
(gv) not holding itself out as having agreed to pay or Guaranteemaintain its assets, or as otherwise being liable forfunds, the obligations and transactions, including its bank accounts, separate from those of any Member other Person, and any of reflect such Member’s respective officers assets and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements transactions in financial statements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name books and not commingling its assets with records that are separate from those of any other Person;
(lvi) paying file its own operating expenses tax returns separate from those of any other Person (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and other liabilities out of its own fundsis not required to file tax returns under applicable law) and pay any taxes required to be paid under applicable Law;
(mvii) observing all limited liability company formalitiesnot hold itself out to be responsible for or have its credit or assets available to satisfy the debts or obligations of any other Person, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant except to due authorization, required hereby and by the Certificate of Formationextent permitted under this Agreement;
(nviii) maintaining not pledge its assets for the benefit of any other Person, except to the extent permitted under this Agreement;
(ix) not acquire Equity Interests in any Person that is a direct or indirect parent of such Borrower;
(x) maintain adequate capital and a sufficient number of employees for the normal obligations operations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
(oxi) not acquiring obligations or pay the securities salaries of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents)own employees; and
(sxii) not identifying itself as a department or division of allocate fairly and reasonably any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply overhead for office space shared with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesAffiliate.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Renewable Energy Group, Inc.), Revolving Credit Agreement (Renewable Energy Group, Inc.)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. At all times, including taking the following actions:
(a) maintaining in full effect its existence, rights all funds and franchises as a limited liability company under the laws assets of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or Company shall be necessary to protect separately identifiable from those of the validity and enforceability of this Agreement and each Member or any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Person.
(b) maintaining The Company shall maintain its own deposit accountsproperty and assets in such a way that it is not difficult or costly to segregate, separate identify and ascertain its property and assets as distinct from those the property and assets of each Member and any of their respective officers and Affiliates;other Person.
(c) conducting all material transactions between The Company shall not guarantee or otherwise hold itself out as being liable for the Company debts of any other entity, and any of shall conduct its Affiliates on an arm’s length basis and on commercially reasonable terms;own business in its own name.
(d) allocating fairly and reasonably the cost of The Company shall not form, or cause to be formed, any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;subsidiaries.
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(f) The Company shall maintain separate records (financial and otherwise), books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(g) not holding itself out as having agreed The Managers shall hold appropriate meetings to pay or Guaranteeauthorize all of the Company’s limited liability company actions, or as otherwise being liable forwhich meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the obligations of any Member Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement and any applicable law, and shall keep and maintain records of such Member’s respective officers meetings and Affiliates;compliance.
(h) not making any loans or extending any Indebtedness toThe Company shall at all times ensure that its capitalization is adequate (and never unreasonably small) in light of its business, or acquiring any Indebtedness of, the Members or their respective Affiliates;purpose and expected activities.
(i) not creatingNeither the Member, granting any Special Member nor any Manager, officer or suffering to exist any Liens (other than Permitted Liens) Affiliate of the Company shall guarantee, become liable on property or hold itself out as being liable for the debts of the Company (except provided that the foregoing shall not prohibit the Member from causing to be issued one or more letters of credit or other credit support in favor of the Trustee in respect of any losses it or any of its officers, directors, employees, representatives or agents may incur in its capacity as Trustee, Transition Bond Registrar, authenticating agent or Paying Agent, in connection with the transactions contemplated by the Customer Agreements and the Transaction Basic Documents);. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company’s obligations under any Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or officer or any Affiliate thereof.
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement. If and to the extent that any amount is drawn under a letter of credit or other credit support referred to in the parenthetical at the end of the first clause of paragraph (i) of this Section 2.09, such amount will not constitute any amount owing by the Company to the Member or any other Person; rather, to the extent that the Member has provided or made available such a letter of credit or other credit support, and an amount is so drawn, such amount will be treated by the Member and the Company as a capital contribution by the Member to the Company.
(k) The Company shall maintain an arm’s-length relationship with the Member and its other Affiliates.
(l) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall allocate fairly and reasonably any overhead for office space shared with the Member, including maintaining meeting minutes any Special Member or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;any Manager.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall use its contemplated own separate taxpayer identification number, stationery, invoices, checks and other business operations;forms.
(o) not acquiring obligations or the securities The Company shall conduct all of its business in its own name and shall correct any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;known misunderstanding regarding its separate identity.
(p) holding The Company shall treat all outstanding Transition Bonds as debt except where a contrary treatment is required by law or by GAAP.
(q) The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;.
(r) The Company shall file its own tax returns, if any, as may be required under applicable law, to the extent (a) not formingpart of a consolidated group filing a consolidated return or returns or (b) not treated as a division for tax purposes of another taxpayer, acquiring or holding and pay any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); andtaxes so required to be paid under applicable law.
(s) not identifying itself The Company shall treat the transfer of the Transition Property from the Member to the Company as a department sale under the Restructuring Act. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager or officer on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Centerpoint Energy Houston Electric LLC), Limited Liability Company Agreement (CenterPoint Energy Transition Bond CO III, LLC)
Separateness. Each The Borrower shall not:
(i) have any employees except for a single part time employee in the Borrower’s Georgia office; provided, that, the Borrower may enter into the Servicing Agreement with the Servicer to the effect that the employees of such entity shall act on behalf of the Members and Borrower; provided that such employees shall at all times hold themselves out to third parties as representatives of the Managing Member acknowledges that Borrower while performing duties under such service agreement (including, without limitation, by means of providing such persons with business or identification cards identifying such employees as agents of the Company is to be formed and operated Borrower);
(ii) act as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from an agent for any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(biii) maintaining commingle its own deposit accounts, separate from funds or other assets with those of each Member any other Person and shall not maintain bank accounts or other depository accounts to which any of their respective officers and Affiliatesother Person is an account party, into which any other Person makes deposits or from which any other Person has the power to make withdrawals;
(civ) conducting all material transactions permit any other Person to pay any of the Borrower’s operating expenses unless such operating expenses are paid by such Person pursuant to an agreement between the Company Borrower and any such other Person providing for the allocation of its Affiliates on an armsuch expenses and such expenses are reimbursed by the Borrower out of the Borrower’s length basis and on commercially reasonable termsown funds;
(dv) allocating fairly and reasonably the cost of consent to be liable for, or hold itself out to be responsible for any shared overhead expensesmoney borrowed by, including office spaceor any Indebtedness incurred by, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(evi) conducting its affairs separately from those of each Member and its officers and Affiliatesassume, and maintaining accurate and separate booksguarantee, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that become obligated for, pay, or hold itself out to be responsible for, the debts or obligations of any other Person;
(gvii) not holding itself out acquire obligations or securities of its Affiliates other than its acquisition of participations in loans, as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliatescontemplated by this Agreement;
(hviii) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant hold out its credit to any of Person as available to satisfy the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those obligation of any other Person;
(lix) paying pledge its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital assets for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities benefit of any Member other entity or make any of such Member’s officers and Affiliates, loans or advances to any Person or entity except as required under provided in this Agreement and the Customer Agreements or Transaction other Loan Documents;
(px) holding itself out buy or hold evidence of Indebtedness issued by any of its Affiliates;
(xi) permit less than one member of the Borrower’s Board of Directors (the “Independent Manager”) to be an individual who has not been, (a) a direct or indirect legal or beneficial owner in the public Borrower or any of its Affiliates, (b) a creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower or its Affiliates, (b) a creditor, supplier, employee, officer, director, family member, manager or contractor of the Borrower or its Affiliates (other than as an independent manager for such entity), or (c) a Person who control (whether directly, indirectly, or otherwise) the Borrower or its Affiliates (other than as an independent manager for such entity);
(xii) permit the Independent Manager at any time to serve as a legal entity separate and distinct from trustee in bankruptcy for the Borrower, the Service, the Originator or any Affiliate thereof;
(xiii) identify itself as a division of any other Person, including the Members;; or
(qxiv) correcting any known misunderstanding regarding except for the Loan Documents, enter into agreements with its separate identity;
(r) Affiliates or agreements with third parties that in the aggregate would be material, if such agreements do not formingcontain the provision that such Affiliates or third parties, acquiring in their respective capacities as counterparties under such agreements, will not seek to initiate bankruptcy or holding any subsidiaries (except as contemplated by insolvency proceedings in respect of the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and AffiliatesBorrower. The failure Borrower shall include the provision described in the preceding sentence (or a substantially similar provision) in all agreements with third parties, to the extent practicable without interfering with the conduct of the Company to comply with any business affairs of the foregoing provisions Borrower, and take into consideration the willingness of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesthird parties to enter into agreements containing such provision.
Appears in 2 contracts
Samples: Financing Agreement (Imperial Holdings, LLC), Financing Agreement (Imperial Holdings, LLC)
Separateness. Each of the Members The Borrower shall at all times (a) maintain its bank accounts, books and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and records separate from any other Person and otherwise ensure that the records and books of the Borrower reflect the separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets from those of any other Person and shall not commingle its funds or assets with those of any other Person (for the avoidance of doubt, the Borrower’s use of third party cash management systems or lockbox arrangements shall not constitute commingling of the Borrower’s funds or assets), (c) hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself to the public as a company separate from its Member, Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), (e) maintain its financial statements, accounting records, and other entity documents separate from any other Person and shall issue and approve its own separate financial statements annually and shall ensure that the Borrower’s books and records reflect the Borrower’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements of its Affiliates, provided that such consolidated financial statements contain a footnote indicating that the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations and liabilities out of its funds and assets and shall not permit other Persons (other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreement) to pay the Borrower’s liabilities or obligations, (g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (h) except as provided in the Servicing Agreement, maintain an arm’s-length relationship with and not be or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit as being available to satisfy the obligations of any other Person, (j) not acquire the debt or securities of the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, (k) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationery, invoices and checks, (l) except as otherwise expressly permitted by this Agreement, not pledge its Affiliates. Accordinglyassets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (n) not make loans to any Person (except for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Managing Member shall cause or any Affiliate of the Company Borrower except in the ordinary course of its business and on terms that are fair and no less favorable to the Borrower than those terms that would be obtained in a comparable arm’s-length transaction with an unrelated third party, (p) promptly correct any known misunderstanding regarding the separate existence and identity of the Borrower, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capitalization in light of its contemplated business and operations, (s) take all appropriate action necessary to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company in good standing under the laws of the State of Delaware Delaware, (t) observe strictly all limited liability company, organizational and obtaining procedural matters and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of formalities required by this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate by applicable law (including the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsDelaware Limited Liability Company Act), separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between as the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliatescase may be, and maintaining keep accurate and separate booksproper books and records of account, records (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions with respect to its business and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company daily operations have been duly authorized in accordance with the Customer Agreements or Transaction Documents;
Borrower LLC Agreement, (kw) maintaining all hold any meetings of its assets in Managers and/or its own name and not commingling its assets with Member separately from those of any other Person;
, (lx) paying its own operating expenses ensure that the Borrower’s officers and other liabilities out of its own funds;
(m) observing all limited liability company formalitiesManagers do not, including maintaining meeting minutes or record meeting and acting in such capacities, act on behalf of itself only other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of Hxxxxx & Bxxxx, LLP dated on or about the Funding Date and referred to in Section 3.2(h). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital a request for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesconfidential treatment.
Appears in 2 contracts
Samples: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. At all times, including taking the following actions:
(a) maintaining in full effect its existence, rights all funds and franchises as a limited liability company under the laws assets of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or Company shall be necessary to protect separately identifiable from those of the validity and enforceability of this Agreement and each Member or any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Person.
(b) maintaining The Company shall maintain its own deposit accountsproperty and assets in such a way that it is not difficult or costly to segregate, separate identify and ascertain its property and assets as distinct from those the property and assets of each Member and any of their respective officers and Affiliates;other Person.
(c) conducting all material transactions between The Company shall not guarantee or otherwise hold itself out as being liable for the Company debts of any other entity, and any of shall conduct its Affiliates on an arm’s length basis and on commercially reasonable terms;own business in its own name.
(d) allocating fairly and reasonably the cost of The Company shall not form, or cause to be formed, any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;subsidiaries.
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(f) The Company shall maintain separate records (financial and otherwise), books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(g) not holding itself out as having agreed The Managers shall hold appropriate meetings to pay or Guaranteeauthorize all of the Company’s limited liability company actions, or as otherwise being liable forwhich meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the obligations of any Member Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement and any applicable law, and shall keep and maintain records of such Member’s respective officers meetings and Affiliates;compliance.
(h) The Company shall at all times ensure that its capitalization is adequate (and never unreasonably small) in light of its business, purpose and expected activities; provided, however, that this provision shall not making require the Member to make any loans or extending any Indebtedness to, or acquiring any Indebtedness of, additional capital contribution to the Members or their respective Affiliates;Company.
(i) not creatingNeither the Member, granting any Special Member nor any Manager, officer or suffering to exist any Liens (other than Permitted Liens) Affiliate of the Company shall guarantee, become liable on property or hold itself out as being liable for the debts of the Company (except provided that the foregoing shall not prohibit the Member from causing to be issued one or more letters of credit or other credit support in favor of the Trustee in respect of any losses it or any of its officers, directors, employees, representatives or agents may incur in its capacity as Trustee, Bond Registrar, authenticating agent or Paying Agent, in connection with the transactions contemplated by the Customer Agreements and the Transaction Basic Documents);. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company’s obligations under any Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or officer or any Affiliate thereof.
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement. If and to the extent that any amount is drawn under a letter of credit or other credit support referred to in the parenthetical at the end of the first clause of paragraph (i) of this Section 2.09, such amount will not constitute any amount owing by the Company to the Member or any other Person; rather, to the extent that the Member has provided or made available such a letter of credit or other credit support, and an amount is so drawn, such amount will be treated by the Member and the Company as a capital contribution by the Member to the Company.
(k) The Company shall maintain an arm’s-length relationship with the Member and its other Affiliates.
(l) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall allocate fairly and reasonably any overhead for office space shared with the Member, including maintaining meeting minutes any Special Member or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;any Manager.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall use its contemplated own separate taxpayer identification number, stationery, invoices, checks and other business operations;forms.
(o) not acquiring obligations or the securities The Company shall conduct all of its business in its own name and shall correct any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;known misunderstanding regarding its separate identity.
(p) holding The Company shall treat all outstanding Bonds as debt except where a contrary treatment is required by applicable law or by GAAP.
(q) The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;.
(r) The Company shall file its own tax returns, if any, as may be required under applicable law, to the extent (a) not formingpart of a consolidated group filing a consolidated return or returns or (b) not treated as a disregarded entity for tax purposes of another taxpayer, acquiring or holding and pay any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); andtaxes so required to be paid under applicable law.
(s) not identifying itself The Company shall treat the transfer of the System Restoration Property from the Member to the Company as a department sale under the Public Utility Regulatory Act. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager or officer on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (CenterPoint Energy Restoration Bond Company, LLC), Limited Liability Company Agreement (CenterPoint Energy Restoration Bond Company, LLC)
Separateness. Each Except for financial reporting purposes (to the extent required by GAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and corporation business tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Members Company as a separate legal entity and the Managing Member acknowledges to make it apparent to third Persons that the Company is to be formed an entity with assets and operated as a special purpose entityliabilities distinct from those of the Member, distinct and separate from any Affiliates of the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking and that the following actionsCompany is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner:
(a) maintaining Except as provided in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable forBasic Documents, the obligations of any Member funds and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other Person;, and the Company shall maintain its accounts separate from the Member and any other Person.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other Person, and shall conduct its own operating expenses business in its own name.
(c) The Company shall not form, or cause to be formed, any subsidiaries.
(d) The Company shall act solely in its limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call or by electronic transmission. The Company shall observe all formalities required by this Agreement.
(g) The Company shall at all times ensure that its capitalization is adequate in light of its business and purpose.
(h) Neither the Member, any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any Person other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or any Affiliate thereof.
(i) The Company shall pay its own liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting The Company shall correct any known misunderstanding regarding its separate identity;
(r) not forming. Failure of the Company, acquiring or holding the Member, any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Jcp&l Transition Funding LLC), Limited Liability Company Agreement (Jcp&l Transition Funding LLC)
Separateness. Each of the Members Owner and the Managing Member acknowledges that Owner Participant does and will continue to do the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsfollowing:
(ai) maintaining in full effect the case of the Owner Participant, have an independent manager reasonably satisfactory to the Security Trustee sitting on its existenceboard of managers (and will not take any Material Action without the prior written consent of such independent manager and the Security Trustee) and will not, rights without the written consent of the Security Trustee, remove the independent manager from the board of managers (and franchises in the event such independent manager shall have resigned, it shall replace such manager with another independent manager satisfactory to the Security Trustee), it being understood that Kxxxx Xxxxx or any other employee or officer of Global Securitization Services, LLC designated in replacement of Kxxxx Xxxxx is an independent manager satisfactory to the Security Trustee for this purpose (in each case so long as a such person continues to satisfy the definition of “Independent Manager” set forth in the limited liability company under the laws agreement of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyOwner Participant);
(bii) maintaining prepare and maintain its own deposit accounts, separate from those of each Member full and any of their respective officers complete books and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs records separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statementsany other entity;
(fiii) acting solely in all dealings with third parties and the public, identify itself by its own limited liability company name as a separate and distinct entity and not that identify itself as being a division or part of any other Personentity whatsoever;
(giv) ensure that all decisions with respect to its business and daily operations are and will be independently made by it and will not holding itself out as having agreed to pay be directed or Guarantee, or as otherwise being liable for, the obligations of dictated by any Member other entity and any of such Member’s respective officers and Affiliatesshall maintain an arms-length relationship with all other entities;
(hv) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets act solely in its own name and not commingling through its own authorized officers and agents and shall ensure that all communications including invoices, purchase orders, contracts, statements, stationery, cheques and applications will be made solely in its name;
(vi) ensure that its assets with are and will remain separate from those of any other Personentity and are and will be maintained in a manner which facilitates the identification and segregation of those assets from those of any other entity whatsoever;
(lvii) paying its own operating observe all corporate formalities and governmental requirements and make all required filings to all applicable authorities;
(viii) discharge all expenses incurred and other liabilities incurred by it only out of its own funds;
(mix) observing all limited liability company formalities, including maintaining meeting minutes ensure that its bank accounts or record meeting and acting on behalf other accounts are kept separate from the accounts of itself only pursuant to due authorization, required hereby and by the Certificate of Formationany other person or entity;
(nx) maintaining adequate capital for the normal obligations reasonably foreseeable not acquire any shares or interest in light of its contemplated business operations;any entity; and
(oxi) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 1 contract
Samples: Loan Agreement (Aspirational Consumer Lifestyle Corp.)
Separateness. Each of the Members Owner and the Managing Member acknowledges that Owner Participant does and will continue to do the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsfollowing:
(ai) maintaining in full effect the case of the Owner Participant, have an independent manager reasonably satisfactory to the Security Trustee sitting on its existenceboard of managers (and will not take any Material Action without the prior written consent of such independent manager and the Security Trustee) and will not, rights without the written consent of the Security Trustee, remove the independent manager from the board of managers (and franchises in the event such independent manager shall have resigned, it shall replace such manager with another independent manager satisfactory to the Security Trustee), it being understood that Kxxxx Xxxxx or any other employee or officer of Global Securitization Services, LLC designated in replacement of Kxxxx Xxxxx is an independent manager satisfactory to the Security Trustee for this purpose (in each case so long as a such person continues to satisfy the definition of “Independent Manager” set forth in the limited liability company under the laws agreement of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyOwner Participant);
(bii) maintaining prepare and maintain its own deposit accounts, separate from those of each Member full and any of their respective officers complete books and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs records separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statementsany other entity;
(fiii) acting solely in all dealings with third parties and the public, identify itself by its own limited liability company name as a separate and distinct entity and not that identify itself as being a division or part of any other Personentity whatsoever;
(giv) ensure that all decisions with respect to its business and daily operations are and will be independently made by it and will not holding itself out as having agreed to pay be directed or Guarantee, or as otherwise being liable for, the obligations of dictated by any Member other entity and any of such Member’s respective officers and Affiliatesshall maintain an arms-length relationship with all other entities;
(hv) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets act solely in its own name and not commingling through its own authorized officers and agents and shall ensure that all communications including invoices, purchase orders, contracts, statements, stationery, cheques and applications will be made solely in its name;
(vi) ensure that its assets with are and will remain separate from those of any other Personentity and are and will be maintained in a manner which facilitates the identification and segregation of those assets from those of any other entity whatsoever;
(lvii) paying its own operating observe all corporate formalities and governmental requirements and make all required filings to all applicable authorities;
(viii) discharge all expenses incurred and other liabilities incurred by it only out of its own funds;
(mix) observing all limited liability company formalities, including maintaining meeting minutes ensure that its bank accounts or record meeting and acting on behalf other accounts are kept separate from the accounts of itself only pursuant to due authorization, required hereby and by the Certificate of Formationany other person or entity;
(nx) maintaining adequate capital for the normal obligations reasonably foreseeable not acquire any shares or interest in light of its contemplated business operations;any entity; and identity.
(oxi) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.separate
Appears in 1 contract
Samples: Loan Agreement (Aspirational Consumer Lifestyle Corp.)
Separateness. Each Seller shall (a) not own any assets, or engage in any business, other than the assets and business specifically contemplated by this Repurchase 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 Repurchase Documents; (c) not make any loans or advances to any third party, 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 Members provisions of its organizational documents (including articles of formation and the Managing Member acknowledges that the Company is by-laws); (f) do all things necessary to observe organizational formalities and to preserve its existence, and shall not amend, modify or otherwise change its organizational documents (including articles of formation and by-laws), or suffer same to be formed amended, modified or otherwise changed, without the prior written consent of Buyer; (g) maintain all of its books, records, financial statements and operated as a special purpose entity, distinct and bank accounts separate from any Member or those of its Affiliates. Accordingly; (h) be, and at all times will hold itself out to the Managing Member shall cause the Company to maintain its existence public as, a legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect correct any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, conduct business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and not identify itself or any of its Affiliates on an arm’s length basis as a division or part of the other and on commercially reasonable terms;
(d) allocating fairly shall maintain and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate utilize a separate telephone number and separate booksstationery, records invoices and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
checks; (i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining 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 Control, 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; (l) maintain its assets in such a manner that it will not be difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or any other Person; (m) not hold itself out to be responsible for the debts or obligations of any other Person; (n) cause each of its direct and indirect owners to agree (and Newco hereby agrees) to (i) not file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to Sellers; not 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 Sellers, (ii) not seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for Sellers or a substantial portion of its properties; or (iii) not make any assignment for the benefit of either Seller's creditors; and (o) agree (and each Seller hereby agrees) to (i) not acquiring obligations file or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to either REIT Subsidiary; not institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the securities protection of any Member debtors generally with respect to either REIT Subsidiary; (ii) not seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for either REIT Subsidiary or a substantial portion of such Member’s officers and Affiliates, except as required under the Customer Agreements its properties; or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(riii) not forming, acquiring or holding make any subsidiaries (except as contemplated by assignment for the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division benefit of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliateseither REIT Subsidiary's creditors.
Appears in 1 contract
Separateness. Each Except to the extent otherwise permitted by the Finance Documents each Obligor shall (and the Parent shall procure that each member of the Members BST Group will): maintain books and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and records separate from any Member or its Affiliates. Accordingly, person that is not a member of the Managing Member shall cause the Company to BST Group; maintain its existence bank accounts separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as person that is not a limited liability company under the laws member of the State of Delaware and obtaining and preserving BST Group; not commingle its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from assets with those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and person that is not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property a member of the Company (except as contemplated by the Customer Agreements BST Group and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining hold all of its assets in its own name provided, however, that it is acknowledged and not commingling agreed that nothing in this clause (c) shall prohibit (i) employees of ITG or any of its Subsidiaries, on the one hand, and employees of any member of the BST Group, on the other hand, from sharing corporate office space located in Greensboro, North Carolina, so long as the costs associated with the occupation of such space are allocated between ITG and its Subsidiaries, on the one hand, and the BST Group, on the other hand, based upon a reasonable allocation method, (ii) the procurement by ITG of software, software licenses and related intellectual property to be made available to any member of the BST Group, so long as such property is generally being purchased or arranged for ITG, its Subsidiaries and the members of the BST Group as a whole and each such member of the BST Group reimburses ITG for the actual costs of such intellectual property based upon a reasonable allocation method, or (iii) the storage or use of assets with those of any other Person;
(l) paying member of the ITG Group so long as such assets are clearly and conspicuously marked or readily identifiable; conduct its own operating expenses business in its own name; provided, however, that it is acknowledged and agreed that any member of the BST Group may change its legal name to include the words “ITG Automotive Safety” so long as (i) such member uses stationery, purchase orders, invoices, and cheques indicating that it is a distinct legal entity within the ITG group of companies and (ii) in connection with such name change, such member delivers a notice to its material vendors announcing such name change; maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other person or entity and shall not have its assets listed on the financial statement of any member of the ITG Group; provided, however, that the assets of any member of the BST Group may be included in the consolidated financial statement of ITG provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the relevant member of the BST Group from the ITG Group and to indicate that the relevant member of the BST Group assets and credit of such member of the BST Group are not available to satisfy the debts and other obligations of members of the ITG Group and (ii) such assets shall also be listed on the BST Group’s own separate balance sheet; other than strictly in accordance with the terms of the Tax Sharing Agreement, file its tax returns separate from those of any other entity and not to file a consolidated federal income tax return with any other corporation; pay its own liabilities and expenses only out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes and issue invoices and purchase orders in its own name, in each case consistent with past practice; provided, however, that ITG may purchase for or record meeting arrange to be made available to any member of the BST Group insurance, employee benefits, tax, legal, accounting and acting on behalf similar services and intangible goods so long as such intangible goods or services are generally being purchased or arranged for ITG, its Subsidiaries and the members of itself only pursuant to due authorization, required hereby the BST Group as a whole and by each such member of the Certificate of Formation;
(n) maintaining adequate capital BST Group reimburses ITG for the normal obligations reasonably foreseeable actual costs of such intangible goods and services based upon a reasonable allocation method; observe all corporate and other organisational formalities; pay the salaries of its own employees from its own funds; maintain a sufficient number of employees in light of its contemplated business operations;
(o) ; not acquiring guarantee or become obligated for the debts of any member of the ITG Group; not hold out its credit as being available to satisfy the obligations of any member of the ITG Group; not acquire the obligations or the securities of any Member member of the ITG Group; not make loans to any member of the ITG Group, or buy or hold evidence of indebtedness issued by any member of the ITG Group; use stationery, purchase orders, invoices, and cheques bearing its own name; provided, however, that it is acknowledged and agreed that any member of the BST Group may change its legal name to include the words “ITG Automotive Safety”, so long as (i) such stationery, purchase orders, invoices, and cheques indicate that such member is a distinct legal entity within the ITG group of companies and (ii) in connection with such name change, such member delivers a notice to its material vendors announcing such name change; not pledge its assets for the benefit of any member of the ITG Group; not identify itself as a division of any member of the ITG Group; and provided, however, that the foregoing shall not apply to nor restrict (i) the Permitted Reorganisation Transaction, (ii) a lease agreement between ITG, as lessor, and ITG Automotive Safety Textiles, LLC, as lessee, with respect to the real property located at 000 Xxx Xxxxxx Xxxxxxx xx Xxxxxxx, Richmond County, North Carolina, (iii) any transaction or service that may be performed by ITG or any of such Member’s officers and Affiliates, except as required under its Subsidiaries for any member of the Customer Agreements BST Group or Transaction Documents;
(p) holding itself out to that may be performed by any member of the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member BST Group for ITG or any of its Subsidiaries pursuant to the terms of the Management Advisory Services and Consulting Agreement dated as of 19 January 2007, among the Parent, BST Safety Textiles Acquisition GmbH, ITG Automotive Safety Textiles, LLC and ITG, (iv) the purchase by any BST Group Member of flat fabric from ITG or any of its Subsidiaries at the then current European market price for such Member’s respective officers and Affiliatesfabric, or (v) any other matter that has been consented to by the Agents. Independent Director The Board of Directors of each U.S. Member of the BST Group shall at all times have one member who is an Independent Director. Each U.S. Member of the BST Group shall not take any vote requiring the consent of the Independent Director unless there is one Independent Director then serving. The failure Independent Director’s power and authority shall be limited to his/her rights to vote on the matters relating to any amendment to the relevant member of the Company BST Group’s organisational documents and commencement of a voluntary bankruptcy case, consent to comply with any the commencement of entry of an order for relief in an involuntary bankruptcy case, or the insolvency, winding-up or liquidation of such U.S. Member of the foregoing provisions BST Group. An Independent Director may not be removed unless his or her successor has been elected and has taken office. In the event of this Section 8.6 the death, incapacity or resignation of an Independent Director, the Board of Directors shall appoint a replacement Independent Director as soon as practicable. Non-Reliance The Parent shall procure that documentation evidencing any future Financial Indebtedness of ITG includes a representation from the lenders extending such Financial Indebtedness that such lenders in extending credit to the ITG Group shall not affect rely on any present or future claim on the status assets of the Company BST Group and a covenant that such lenders shall not take any action that is inconsistent with such non-reliance. Realignment With effect from the date that the Agents give notice to the Lenders and the Parent that the documents and evidence referred to in Schedule 13 (Steps 5 to 8) have been delivered to them, the Finance Parties consent to the implementation of Steps 5 to 8. With effect from the date that the Agents give notice to the Lenders and the Parent that the documents and evidence referred to in Schedule 14 (Step 9) have been delivered to them, the Finance Parties consent to the implementation of Step 9. With effect from the date that the Agents give notice to the Lenders and the Parent that the documents and evidence referred to in Schedule 15 (Steps 10 to 14) have been delivered to them, the Finance Parties consent to the implementation of Steps 10 to 14. The Obligors undertake to the Finance Parties to only enter into documentation implementing Steps 5 to 14 which is in substantially the same form (minor and technical amendments which are not prejudicial to the Finance Parties excepted) as a separate legal Person the documentation delivered to the Agents pursuant to paragraphs (a) to (c) above. No Obligor may permit any document delivered by on or behalf of them to the limited liability Agents pursuant to paragraphs (a) to (c) above to be amended, waived or supplemented without the consent of the MembersMajority Lenders, except that the consent of the Majority Lenders will not be required for technical or their minor amendments which would not be prejudicial to the interests of the Finance Parties. The Agents shall notify the Parent and the Lenders promptly upon satisfactory receipt of the documents and evidence pursuant to paragraphs (a) and (c) above respectively. The Parent shall procure that promptly following the Realignment Completion Date (i) the following filings necessary to implement Steps 10, 13 and 14 are made with the relevant German commercial registers (Handelsregister), (ii) that certified (beglaubigte) copies of the respective Affiliates.filing documentation are provided to the Agents, and (iii) that copies of the commercial register excerpts (Handelsregisterauszüge) certified by the relevant commercial register (Handelsregister) and evidencing registration of the following filings with the relevant commercial register (Handelsregister) are provided to the Agents. The filings referred to above are filings in connection with:
Appears in 1 contract
Samples: Term and Revolving Facilities Agreement (International Textile Group Inc)
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights The funds and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other entity, and the Company shall maintain its accounts separate from each Company Member and any other Person;.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other entity other than the Company and its Subsidiaries (collectively, the "COMPANY GROUP"), and shall conduct its own operating expenses business in its own name or duly adopted assumed name.
(c) The Company shall not form, or cause to be formed, any Subsidiary other than in connection with conducting the Business.
(d) The Company shall act solely through its duly authorized Class A Members, Managers, Officers or agents in the conduct of the Business, and shall conduct the Business so as not to confuse others as to the identity or assets of the Company Group with those of any other entity.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other entity.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call or by unanimous written consent.
(g) Other than the obligations, guarantees or pledges existing on November 18, 2002 and the guarantees of (A) the Energy Plaza building lease obligations of TXU Corp., (B) an Affiliate's obligations with respect to operations in Mexico not to exceed $15 million and (C) an Affiliate's obligations with respect to leased equipment utilized by the Company not to exceed $25 million, the Company shall not (i) guarantee or become obligated for the debts of any Class A Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of any Class A Member, any Manager or any other Person, or (ii) pledge its assets for the benefit of any entity, acquire obligations or securities of any Class A Member, any Manager or any Affiliate; provided, however, that the Company may do all of the foregoing for the benefit of the Company Group.
(h) The Company shall pay its own liabilities out of its own funds;.
(mi) observing all limited liability company formalities, including maintaining meeting minutes The Company Group shall maintain an arms' length relationship or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required other relationship commercially reasonable under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate circumstances and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division in compliance with all regulatory codes of any Member or any of such Member’s respective officers and Affiliates. The failure conduct with their Affiliates outside of the Company to comply with Group.
(j) The Company Group shall use its own separate stationery, invoices, checks and other business forms.
(k) The Company shall correct any known material misunderstanding regarding the separate identity of the foregoing Company Group. Nothing in this Section 2.07 or Section 2.08 herein shall be deemed to prohibit (i) the use of an Affiliate for the provision of services that can be performed cost effectively on a shared services basis, including treasury, payroll, accounting, human resources, legal, environmental, engineering, information technology and other administrative services, or (ii) participation in TXU Corp.'s money pool for its system companies in accordance with the guidelines established from time to time therefore, as long as, in each case, such activities are otherwise in compliance with the provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates2.07 and Section 2.08.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Txu Energy Co LLC)
Separateness. Each of the Members (a) The Trust shall not:
(i) engage in any business or activity other than as set forth in Section 2.02 hereof;
(ii) enter into transactions with Affiliates unless such transactions are on an arm’s-length basis, on commercially reasonable terms and the Managing Member acknowledges that the Company is to on terms no less favorable than would be formed obtained in a comparable arm’s-length transaction with an unrelated third party and operated as a special purpose entity, distinct and separate from any Member or shall otherwise maintain an arm’s-length relationship with its Affiliates. Accordingly;
(iii) except as otherwise provided in Section 7.01, dissolve or liquidate, in whole or in part;
(iv) consolidate or merge with or into any other entity or, except as permitted under the Managing Member Indenture, sell, lease, assign, convey or otherwise transfer all or substantially all of its properties and assets to any Person;
(v) take any action that it knows shall cause the Company Trust to maintain become insolvent;
(vi) guarantee or become obligated for the debts of any other Person or hold out its existence separate and distinct from credit as being available to satisfy the obligations of any other Person, including taking except as expressly provided or contemplated in the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyTransaction Documents;
(bvii) maintaining hold out its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between credit as being available to satisfy the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that obligations of any other Person;
(gviii) not holding itself out as having agreed to pay incur or Guarantee, or as otherwise being liable for, the obligations of assume any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (indebtedness except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(kix) maintaining pledge its assets for the benefit of any other Person or make any loans or advances to any entity except as contemplated by the Transaction Documents;
(x) take any action that shall cause the Trust to be treated as an association (or publicly traded partnership) taxable as a corporation for U.S. federal income tax purposes;
(xi) acquire the obligations or securities of its Affiliates or the Depositor or own any material assets other than the Loans and related assets and any incidental property as may be necessary for the operation of the Trust, except as contemplated by the Transaction Documents; or
(xii) identify itself as a division of any other person or entity.
(b) Notwithstanding any other provision of this Trust Agreement to the contrary, the Trust shall:
(i) maintain complete books, records and agreements (including books of account and minutes of meetings and other proceedings) as official records and separate from each other Person;
(ii) strictly observe all organizational formalities;
(iii) maintain its bank accounts separate from each other Person;
(iv) except as expressly contemplated in the Transaction Documents, not commingle its assets with those of any other Person and hold all of its assets in its own name and not commingling its assets with those of any other Personname;
(lv) paying conduct its own operating business in its own name;
(vi) not have its assets listed on the financial statements of another Person, except as required by U.S. generally accepted accounting principles consistently applied;
(vii) other than as contemplated by the Transaction Documents, pay its own liabilities and expenses and other liabilities only out of its own funds;
(mviii) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, observe formalities required hereby and by under the Certificate of FormationDelaware Statutory Trust Act;
(nix) maintaining adequate capital for the normal obligations reasonably foreseeable in light of use separate stationery, invoices and checks bearing its contemplated business operationsown name (or under any name licensed pursuant to any trademark license or similar agreement);
(ox) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding hold itself out to the public as a legal separate entity separate and distinct from any other Person, including the MembersDepositor, and not conduct any business in the name of any other Person, including the Depositor;
(qxi) correcting correct any known misunderstanding regarding its separate identity;
(rxii) not formingform, acquiring acquire or holding hold any subsidiaries subsidiary (whether corporate, partnership, limited liability company or other) except as contemplated by permitted under the Customer Agreements or Transaction Documents);
(xiii) 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 other Person;
(xiv) maintain adequate capital in light of its contemplated business operations, transactions and liabilities; and
(sxv) not identifying itself as a department or division cause its agents and other representatives to act at all times with respect to it consistently and in furtherance of any Member or any of such Member’s respective officers and Affiliatesthe foregoing. The failure parties hereto hereby agree that the entering into and performance by the Trust of the Company Transaction Documents in accordance with the terms and conditions thereof shall not be deemed to have caused the Trust to have violated, or to have failed to comply with with, any of the foregoing provisions of restrictions or covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.09 or the limited liability of the Members, any other restrictions or their respective Affiliatescovenants contained in this Trust Agreement.
Appears in 1 contract
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed Administrative Agent and operated the Lenders are entering into this Agreement in reliance upon each Relevant Party’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, including taking from and after the following actionsClosing Date, the Borrower shall take all reasonable steps to maintain each Relevant Party’s identity as a separate legal entity from each other Person and to make it manifest to third parties that the Relevant Parties are separate legal entities. Without limiting the generality of the foregoing, the Borrower agrees that it shall, and cause each of the Relevant Parties to:
(a) maintaining hold all of its Assets in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyown name;
(b) maintaining not commingle its own deposit accounts, separate from those Assets with the Assets of each Member and any of their respective officers and its members, Affiliates, principals or any other Person;
(c) conducting all material transactions between maintain books, records and agreements as official records and separate from those of the Company members, principals and Affiliates or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;other Person; [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
(d) allocating fairly maintain its bank accounts separate from the members, principals and reasonably the cost Affiliates of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(e) conducting its affairs separately from those of each Member not, other than pursuant to the Transaction Documents and its officers and as otherwise expressly permitted by Section 9.16 (Transactions with Affiliates), and maintaining accurate and separate books, records and accounts and financial statementsenter into any Affiliate Transaction;
(f) acting maintain separate Financial Statements from those of its general partners, members, principals, Affiliates or any other Person; provided, however, that the Relevant Parties financial position, Assets, liabilities, net worth and operating results may be included in the consolidated Financial Statements of Sponsor, provided that (i) appropriate notation shall be made on such consolidated Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Sponsor and each Relevant Party maintain separate books and records and to indicate that none of the Relevant Parties’ Assets and credit are available to satisfy the debts and other obligations of the Sponsor or any other Person and (ii) such Assets and liabilities shall be listed on each Relevant Party’s own separate balance sheet;
(g) promptly correct any known or suspected misunderstanding regarding its separate identity;
(h) not 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;
(i) not guarantee or become obligated, or hold itself as responsible, for the debts of any other Person, except under the Collateral Documents;
(j) not hold out its credit as being available to satisfy the obligations of any other Person, except under the Collateral Documents;
(k) not make any loans or advances to any third party, including any member, principal or Affiliate of the Borrower, or any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) not pledge its Assets for the benefit of any other Person, except as expressly permitted under the Loan Documents;
(m) not identify itself or hold itself out as a division of any other Person or conduct any business in another name;
(n) maintain adequate capital in light of its current and contemplated business operations;
(o) act solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective its officers and Affiliates;
(h) not making or any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or of their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining at all of its assets in times use its own name stationery, invoices and not commingling its assets with checks separate from those of any other Person;
(l) paying its own operating expenses and other liabilities out , any of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member officers or any of such Member’s officers and their respective Affiliates; [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. (p) not acquire obligations or securities of its members, shareholders or other Affiliates, as applicable, except as required expressly permitted under the Customer Agreements or Transaction Loan Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 1 contract
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to will at all times:
(i) maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company and remain in good standing under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of Delaware;
(ii) observe all limited liability company procedures required by this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyAct;
(biii) maintaining ensure that (A) its own deposit accountsbusiness is at all times managed by or under the direction of the Board of Managers, (B) the Board of Managers has authorized all actions requiring authorization and (C) when required by law or by this Agreement, it has obtained authorization for action from its Member;
(iv) maintain its books, financial statements and other documents and records separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of Member, its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of or any other Person;
(gv) ensure that its assets are not holding commingled with those of the Member or its Affiliates, and not hold itself out as having agreed to pay or Guarantee, or as otherwise being liable for, for the obligations debts of any Member and any of such Member’s respective officers and Affiliatesanother;
(hvi) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness ofmaintain its bank accounts and books of account separate from those of its Affiliates, the Members Member or their respective Affiliates;
(i) not creating, granting its Affiliates or suffering to exist any Liens (other than Permitted Liens) on property of Person or entity; and ensure that its funds and other assets will at all times be readily distinguishable from the Company (except as contemplated by the Customer Agreements funds and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all assets of its assets in Affiliates, the Member and its own name and not commingling its assets with those of Affiliates or any other Person;
(lvii) paying act solely in its own operating expenses name and other liabilities out of through its own fundsmanagers and agents so as not to mislead others about its identity or the identity of any Affiliate and correct any known misunderstanding about its separate identity, and conduct all oral and written communications, solely in its own name;
(mviii) observing all limited liability company formalitiesseparately manage its liabilities from those of the Member and its Affiliates and pay its own liabilities, including maintaining meeting minutes all administrative expenses, from its own assets, except that (A) the Member or record meeting its Affiliates may pay some of the organizational costs of the Company, and acting on behalf the Company will reimburse the Member or its Affiliates for its allocable portion of itself only pursuant to due authorization, required hereby and shared expenses paid by the Certificate of FormationMember or its Affiliates and (B) the Member or its Affiliates may pay fees and expenses and indemnify parties under Section 2.5(c);
(nix) maintaining maintain arm’s length relationships with its Affiliates;
(x) not create, incur or assume any indebtedness, other than the Securities and other obligations permitted under the Basic Documents, unless the indebtedness is rated by each Rating Agency then rating the outstanding Securities at the request of the Member or the Company, or unless the Rating Agency Condition is satisfied;
(xi) not create, incur or assume any indebtedness or issue any security or sell or transfer any Receivables or Underlying ABS to a Trust or other Person which issues a security relating to the Receivables or Underlying ABS unless the debt or security holders agree or are considered to have agreed that, before the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of all of the debt or securities of the Company and all of the debt or securities issued through the Trusts, they will not to start or pursue against, or join any other Person in starting or pursuing against, the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law;
(xii) operate so that it would not be substantively consolidated for purpose of applicable bankruptcy laws with another entity;
(xiii) have a sufficient number of Managers and other authorized agents to manage its operations; and
(xiv) maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Ford Credit Floorplan LLC)
Separateness. Each As of the Members date hereof, the Seller (i) owns no assets, and does not engage in any business, other than the Managing Member acknowledges assets and transactions specifically contemplated by this Repurchase Agreement; (ii) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (W) with respect to Retained Interests, (X) commitments to make loans which may become Eligible Assets, and (Y) as permitted herein; (iii) has not made any loans or advances to any Affiliate other than loans to the Guarantor that have been disclosed in writing to and approved by the Company is Purchaser, and has not acquired obligations or securities of its Affiliates; (iv) has paid its debts and liabilities (including, as applicable, shared personnel and overhead Loan Purchase and Repurchase Agreement (Wachovia and Arbor) expenses) only from its own assets; (v) complies with the provisions of its organizational documents; (vi) does all things necessary to observe organizational formalities and to preserve its existence, and has not amended, modified or otherwise changed its Governing Documents, or suffered same to be formed amended, modified or otherwise changed; (vii) maintains all of its books, records, financial statements and operated bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the extent consolidation is required under the GAAP consistently applied or as a special purpose entitymatter of Applicable Law); (viii) is, distinct and separate from any Member or its Affiliates. Accordinglyat all times holds itself out to the public as, the Managing Member shall cause the Company to maintain its existence a legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect corrects any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, conducts business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and does not identify itself or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay a division or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property part of the Company other; (except as contemplated by the Customer Agreements and the Transaction Documents);
(jix) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining maintains adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;
; (ox) does not acquiring obligations engage in or the securities suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) does not commingle its funds or other assets with those of any Member Affiliate or any other Person; (xii) maintains its accounts separately from those of such Member’s officers and Affiliates, except as required under the Customer Agreements any Affiliate or Transaction Documents;
any other Person; (pxiii) holding does not hold itself out to be responsible for the public as a legal entity separate and distinct from debts or obligations of any other Person; (xiv) has not (A) filed or consented to the filing of any Insolvency Proceeding with respect to the Seller, including instituted any proceedings under any applicable Insolvency Law or otherwise sought any relief under any laws relating to the Members;
relief from debts or the protection of debtors generally with respect to the Seller, (qB) correcting sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any known misunderstanding regarding similar official for the Seller or a substantial portion of its separate identity;
properties or (rC) not forming, acquiring made any assignment for the benefit of the Seller's creditors; (xv) has at least one (1) Independent Director or holding any subsidiaries (except such greater number as contemplated required by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member Purchaser or any Rating Agency; (xvi) shall maintain an arm's length relationship with its Affiliates; (xvii) maintain a sufficient number of such Member’s respective officers employees in light of contemplated business operations; (xviii) use separate stationary, invoices and Affiliates. The failure of the Company to comply with checks; and (xvix) allocate fairly and reasonably any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesoverhead for shared office space.
Appears in 1 contract
Samples: Loan Purchase and Repurchase Agreement (Arbor Realty Trust Inc)
Separateness. Each of Member and the Company are separate and distinct entities, and the Members and the Managing Member acknowledges agree that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking including, without limitation, adhering to the following actionsfollowing:
(a) maintaining in full effect its existenceThe Company has not formed, rights acquired or held and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is shall not form, acquire or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyhold any Subsidiary;
(b) maintaining The Company has not engaged in, sought, consented to or permitted and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all or substantially all of its own deposit accountsassets or any sale of assets outside the ordinary course of its business, separate from those except in each case as permitted by (i) this Agreement (specifically with respect to the sale of each Member and Existing Systems pursuant to the Repurchase Agreement) and, (ii) any transfer of their respective officers and Affiliatesthe Company’s Membership Interests in connection with the transactions described in the ECCA or this Agreement;
(c) conducting The Company shall not incur any debt or contingent liabilities except as permitted by this Agreement;
(d) The Company shall not commingle assets with those of any other Person and shall hold its assets in its own name;
(e) The Company shall conduct its own business in its own name and not in the name of any other Person, including any Member;
(f) The Company shall maintain bank accounts (if any), books and records separate from any other Person;
(g) The Company shall observe all material transactions between formalities of this Agreement and the Certificate of Formation;
(h) The Company and shall not identify itself as a department or division of any other Person;
(i) The Company shall not acquire obligations or securities of its Members;
(j) The Company shall pay its own liabilities out of its own funds;
(k) The Company shall maintain adequate capital in light of its contemplated business operations and liabilities;
(l) The Company shall use its own stationery, invoices and checks separate from those of any other Person, including any Member;
(m) The Company shall pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operations;
(n) The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of any other Person;
(o) The Company shall not make any loans to any other Person other than in accordance with this Agreement;
(p) The Company shall conduct all transaction and maintain relationship with any Affiliates on an arm’s 's length basis and on commercially reasonable terms;
(dq) allocating fairly and reasonably The Company shall not pledge its assets for the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that benefit of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by provided in the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(kr) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding The Company shall hold itself out to the public as a legal entity separate entity, and distinct from any other Person, including the Members;
(q) correcting shall use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bloom Energy Corp)
Separateness. Each of the Members Borrower and the Managing Member Master Servicer acknowledges that the Company Lender is to be formed and operated entering into the transactions contemplated by the Transaction Documents in reliance upon the Borrower’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliateseach of the Originators and their respective Related Parties. AccordinglyTherefore, from and after the date of execution and delivery of this Agreement, the Managing Member Borrower shall cause take all reasonable steps, including, without limitation, all steps that the Company Lender may from time to time reasonably request, to maintain its existence the Borrower’s identity as a separate legal entity and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from any those of its Related Parties and not just a division thereof. Without limiting the generality of the foregoing and in addition to the other Personcovenants set forth herein, including taking except as herein specifically otherwise provided, the following actionsBorrower will:
(ai) maintaining Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement the Borrower’s Organizational Documents and each other instrument or agreement necessary or appropriate to properly administer this Agreement its Organizational Documents and permit and effectuate the transactions contemplated hereby and thereby;
(bii) maintaining Maintain its own deposit separate books and records and its own bank accounts, separate from those of each Member and any of their respective officers and Affiliates;
(ciii) conducting all material transactions between the Company and any of Maintain an arms’ length relationship with its Affiliates on an arm’s length basis and on commercially reasonable termsits sole member;
(div) allocating fairly and reasonably the cost Have a board of directors which is not identical to that of its member or any shared overhead expensesother Related Party, including office spaceincluding, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesat all times, at least one Independent Director;
(ev) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying Pay its own operating expenses and other liabilities out of its own funds, and allocate fairly and reasonably, to the extent practical on the basis of actual use or the value of services rendered, any overhead for shared office space or other overhead expenses;
(mvi) observing Maintain separate financial statements (it being understood that the Borrower will be consolidated for financial reporting purposes with TPX);
(vii) File its own tax returns, if any, as may be required under applicable law, to the extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(viii) Conduct its affairs in its own name separately from those of any other Person and strictly complying with all organizational formalities to maintain its separate existence;
(ix) Act solely in its own limited liability company name and through its own authorized managers, directors, members, officers and agents, except as explicitly permitted by the Borrower’s Organizational Documents and the Transaction Documents;
(x) At all times use its own stationery, separate from those of any other Person;
(xi) Not hold out its credit or assets as being available to satisfy the obligations of others;
(xii) Except as contemplated by the Borrower’s Organizational Documents and the Transaction Documents, maintain all of its assets in its own name and not commingle its assets with those of any other Person;
(xiii) Observe all Delaware limited liability company formalities, including maintaining meeting minutes or record meeting records of meetings and acting on behalf of itself only pursuant to due authorization, required hereby and by the its Certificate of Formation;
(nxiv) maintaining Maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operationsoperations and in any event, the Borrower shall maintain its equity in an amount not less than the Required Capital Amount;
(oxv) not acquiring obligations or the Not acquire any securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsits member;
(pxvi) holding Hold itself out to the public and all other Persons as a legal entity separate and distinct from its member and any other Person, including the Members;
(q) correcting Person and correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(sxvii) not identifying itself as a department or division of any Member or any of such Member’s respective officers Cause the managers, authorized persons, agents and Affiliates. The failure other representatives of the Company Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower. Failure of the Borrower, its sole member, its manager or its board of directors, to comply with any of the foregoing provisions of covenants or any other covenants contained in this Section 8.6 Agreement, shall not affect the status of the Company Borrower as a separate legal Person entity or the limited liability of the Members, its member or their respective Affiliatesmanagers.
Appears in 1 contract
Samples: Credit and Security Agreement (Tempur Sealy International, Inc.)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower's identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Required Lenders may from time to time reasonably request, to maintain the Borrower's identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(c) to the extent necessary for the operation of its business, (i) fail to maintain an email address not used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower's own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) either (i) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or (ii) make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than monthly or otherwise, in certain other irregular cases, in accordance with appropriate corporate formalities and consistent with sound business judgment;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or dissolve, granting terminate or suffering liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case, to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated extent permitted by law, the Customer Agreements Administrative Agent's and the Transaction Documents)Required Lenders' consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent and the Required Lenders, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower's certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Required Lenders;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Obligations;
(n) fail to remain Solvent; provided, that this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Credit Party or any general partner, member, principal or Affiliate of any other Credit Party, except with the Required Lenders' consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of the Company, any other Credit Party, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower's financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of the Company and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(sy) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal other Person or entity;
(z) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the limited liability Persons sharing such expenses and to use separate stationery, invoices and checks;
(aa) acquire obligations or securities of the Membersits partners, members, shareholders or their respective other Affiliates., as applicable;
Appears in 1 contract
Separateness. Each Since the formation of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
Purchaser (a) maintaining Purchaser has incurred no debt other than trade payables and expense accruals in connection with its operations in the normal course of business; (b) Purchaser has maintained its books and records separate from the books and records of any other entity, has maintained separate bank accounts and no funds of Purchaser have been commingled with funds of any other entity; (c) Purchaser has kept in full effect its existence, rights and franchises as a limited liability company corporation under the laws of the State of Delaware Delaware, and obtaining has obtained and preserving preserved its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
Receivables; (d) allocating fairly Purchaser does not own any subsidiary and reasonably the cost of has not loaned or advanced any shared overhead expensesmoneys to, including office spaceor made an investment in, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
Person; (e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
Purchaser has not made any capital expenditures; (f) acting solely Purchaser has not guaranteed (directly or indirectly), except with respect to its obligation to repurchase Receivables pursuant to the 11 Purchase Agreement terms of the Sale and Servicing Agreement, endorsed or otherwise become contingently liable (directly or indirectly) for the obligations of, or owned or purchased any stock, obligations or securities of or any other interest in, or made any capital contribution to, any Person; and (g) Purchaser has not engaged in its own limited liability company name and any other action that bears on whether the separate legal identity of Purchaser will be respected and, without limitation of the foregoing, Purchaser has not that (1) held itself out as being liable for the debts of any other Person;
party, (g2) not holding itself out as having agreed to pay acted other than in its corporate name and through its duly authorized officers or Guaranteeagents, and (3) created, incurred, assumed, or as otherwise being in any manner become liable for, the obligations in respect of any Member indebtedness except trade payables and expense accruals incurred in the ordinary course of business and which are incidental to its business purpose. In the event of any breach of such Member’s respective officers a representation and Affiliates;
(h) warranty made by Purchaser hereunder, Originator covenants and agrees that it will not making take any loans action to pursue any remedy that it may have hereunder, in law, in equity or extending any Indebtedness tootherwise, until a year and a day have passed since the date on which all Notes, Certificates, pass-through certificates or other similar securities issued by Purchaser, or acquiring any Indebtedness ofa trust or similar vehicle formed by Purchaser, the Members have been paid in full. Originator and Purchaser agree that damages will not be an adequate remedy for such breach and that this covenant may be specifically enforced by Purchaser, Issuer or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting Indenture Trustee on behalf of itself only pursuant to due authorization, required hereby the Noteholders and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure Owner Trustee on behalf of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCertificateholders.
Appears in 1 contract
Separateness. Each of The Company has taken and will take the Members and the Managing Member acknowledges following steps to ensure at all times that the Company is to be formed operates and operated maintains its legal status as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence an independent entity separate and distinct from any other Person, including taking the following actions:
(a) maintaining Except as provided herein or in full effect the Senior Loan Agreement, the funds and other assets of the Company shall not be commingled or pooled with those of any other Person. The Company shall hold all of its existenceassets in its own name or in the name of a trustee, rights custodian or other agent on its behalf.
(b) The Company shall maintain separate deposit and franchises other bank accounts and funds to which no other Person has access (except to the extent required by the Senior Loan Agreement), which accounts shall be maintained in the name of the Company.
(c) Except as a expressly permitted by the Senior Loan Agreement, the Company shall not guarantee, become obligated for or pay the debts of any other Person or hold the credit of the Company out as being available to satisfy the obligations of any other Person (nor indemnify any Person for losses resulting therefrom), nor have any of its obligations guaranteed by any other Person or hold the Company out as responsible for the debts of any other Person or for the decisions or actions with respect to the business and affairs of any other Person, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any other Person (i.e., other than based on the creditworthiness or assets of the Company) nor allow any Person to do such things based on the credit of the Company.
(d) The Company shall observe all organizational formalities.
(e) The Company shall have its own Credit Committee and Managers.
(f) The Company shall act solely in its limited liability company name (or in another separate name approved under Section 2.2) and through its duly authorized Managers, officers or agents in the conduct of its business, and shall conduct its business so as not to mislead others as to the identity of the entity or assets with which they are concerned. Without limiting the generality of the foregoing, all written and oral communications, including without limitation letters, invoices, purchase orders, contracts, statements and loan applications, shall be made solely in the Company’s own name (or in another separate name approved under Section 2.2).
(g) Except as expressly permitted by the Senior Loan Agreement, the Company shall direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate of the Company and cause the Affiliates of the Company to direct their creditors not to send invoices and other statements of accounts of such Affiliate to the Company (to the extent necessary to prevent the same from being sent to the Company).
(h) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other Person or the Members. The assets of the Company shall not and will not be available to satisfy the claims of any creditor of the Members.
(i) The Credit Committee shall hold appropriate meetings to authorize all of the Company’s limited liability company actions, which meetings may be held by meeting, by telephone conference call or by written consent of the Required Designees.
(j) Except to the extent expressly provided herein, the Company shall pay its own liabilities and expenses out of its own funds as the same shall become due.
(k) The Company shall compensate all employees, consultants and agents and Affiliates, to the extent applicable, for services provided to or on behalf of the Company by such employees, consultants and agents and Affiliates, in each case, from the Company’s own funds and either maintain a sufficient number of employees, and/or employ sufficient consultants and agents, in light of its contemplated operations.
(l) Except as expressly provided herein, the Company shall pay from its own bank and brokerage accounts for operating expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliate.
(m) The Company shall at all times ensure that its capitalization is adequate to conduct its business and affairs considering the Company’s size and nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Transaction Documents, refrain from engaging in a business for which its remaining property represents unreasonably small capital.
(n) Except as expressly permitted by the Senior Loan Agreement, the Company shall maintain third party arm’s-length relationships with its Members and their Affiliates.
(o) [Reserved].
(p) The Company shall hold itself out as a separate legal entity and correct any known misunderstanding regarding its separate identity.
(q) The Company shall avoid the appearance of conducting business on behalf of any other Person Controlling or Controlled by, or under common Control of, any Member or any of its Affiliates, or of having assets available to pay the creditors of any Affiliate of the Company.
(r) The Company’s financial statements shall disclose the effects of its transactions in accordance with GAAP, consistently applied, and disclose that its assets are not available to pay creditors of any Affiliate of the Company.
(s) The Company’s resolutions, agreements and other instruments authorizing the transactions described in the Transaction Documents shall be maintained by it as official records, separately identified and held apart from the records of any Affiliate of the Company.
(t) The Company shall not appoint an Affiliate of the Company or any employee of any such Affiliate as an agent of the Company, except as otherwise permitted in the Transaction Documents (although such Person can qualify as a Manager or a Credit Committee Designee).
(u) Except as expressly permitted by any of the Transaction Documents, the Company shall not acquire obligations or securities of or make any loans or advances to or pledge its assets for the benefit of any Member or any Affiliate of a Member.
(v) The Company shall file its own tax returns, if any, as may be required under Applicable Law.
(w) The Company shall otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this Agreement or all other appropriate constituent documents.
(x) The Company shall maintain its valid existence in good standing under the laws of the State of Delaware and obtaining and preserving maintain its qualification to do business in each jurisdiction in which under the laws of such qualification is or other jurisdictions as its operations require.
(y) The Company shall obtain and maintain any lender licenses and qualifications as shall be necessary required by the nature and location of its activities.
(z) The Company shall comply with all laws applicable to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any . Failure of the Customer Agreements Company, any Member, or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting Manager on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the Members, Members or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (HPS Corporate Lending Fund)
Separateness. Each of the Members and the Managing Member acknowledges that the (a) The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company take all reasonable steps to maintain its existence identity as a separate legal entity from each other Person and distinct from any other Personto make it manifest to third parties that it is a separate legal entity. Without limiting the generality of the foregoing, including taking the following actionsCompany shall:
(ai) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining maintain its own deposit accountsbooks, records and agreements as official records and separate from those of each Member its Affiliates and any of their respective officers Members and Affiliatesall other Persons;
(cii) conducting all material transactions between the Company and any maintain its bank accounts separate from those of its Affiliates on an arm’s length basis and on commercially reasonable termsMembers and all other Persons;
(diii) allocating fairly at all times hold itself out to the public as a legal entity separate from its Affiliates and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name all other Persons and not that identify itself or hold itself out as a division of any other Person;
(giv) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member conduct its business in its own name and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining hold all of its assets in its own name and not commingling commingle its property with the property of any of its Affiliates and Members and all other Persons;
(v) hold at least quarterly meetings of the Board as required pursuant to Section 5.3 and otherwise observe all organizational formalities set forth in the Governing Documents;
(vi) maintain an arm’s-length relationship with Affiliates of CRC;
(vii) not hold out its credit as being available to satisfy the obligations of any other Person, including CRC and its Affiliates;
(viii) not become or remain liable, directly or contingently, in connection with any Indebtedness or other liability of CRC or any of its Subsidiaries, whether by guaranty, indorsement (other than indorsements of negotiable instruments for deposit or collection in the ordinary course of business), agreement to purchase or repurchase, agreement to supply or advance funds or otherwise;
(ix) not grant or permit to exist any lien, encumbrance, claim, security interest, pledge, guarantee or other right in favor of any Person in the assets of the Company or its Subsidiaries that secures the obligations or is for the benefit of CRC and its Subsidiaries;
(x) not make any loans or advances or transfer any funds to CRC or its Subsidiaries;
(xi) file its own tax return and pay on its own behalf any Taxes;
(xii) not commingle its funds or assets with those the funds or assets of any other Person;
(lxiii) paying pay its own operating liabilities and expenses and other liabilities only out of its own funds;
(mxiv) observing all limited liability company formalitiesuse separate stationary, including maintaining meeting minutes or record meeting invoices and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formationchecks bearing its own name;
(nxv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(sxvi) not identifying itself as a department acquire any obligations or division securities of any Member CRC or any of such Member’s respective officers its Subsidiaries.
(b) The Members acknowledge and Affiliates. The failure of agree that the Company to comply with is a special purpose, non-guarantor, unrestricted Subsidiary of CRC and any Affiliate thereof and shall be bankruptcy remote from CRC and any Affiliate of CRC that is not the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCompany.
Appears in 1 contract
Samples: Limited Liability Company Agreement (California Resources Corp)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower's identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Administrative Agent may from time to time reasonably request, to maintain the Borrower's identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(c) to the extent necessary for the operation of its business, (i) fail to maintain an email address not used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower's own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) either (i) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or (ii) make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than monthly or otherwise, in certain other irregular cases, in accordance with appropriate corporate formalities and consistent with sound business judgment;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or dissolve, granting terminate or suffering liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case, to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated extent permitted by law, the Customer Agreements and the Transaction Documents)Administrative Agent's consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower's certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Obligations;
(n) fail to remain Solvent; provided, that this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Credit Party or any general partner, member, principal or Affiliate of any other Credit Party, except with the Administrative Agent's consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of the Company, any other Credit Party, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower's financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of the Company and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(sy) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(z) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(aa) acquire obligations or securities of its partners, members, shareholders or other Affiliates. The failure , as applicable;
(bb) violate or cause to be violated the assumptions made with respect to the Borrower in any opinion letter pertaining to substantive consolidation delivered to the Lenders in connection with the Credit Documents;
(cc) fail to have Organizational Documents that provide that, so long as the Obligations of the Company Borrower shall be outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Borrower, or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Director; and
(dd) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with any respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower;
(ee) fail to observe all requisite organizational formalities under Delaware law. In the event of any inconsistency between the covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.6 or the limited liability of the Membersother covenants set forth in this Agreement, or their respective Affiliatesin the event that any covenant set forth in this Section 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.6 shall control.
Appears in 1 contract
Separateness. Each The Seller shall operate its business in such a manner that the separate limited liability company or corporate, as applicable, existence of the Members Seller on the one hand, and each of the Managing Member acknowledges that Originators or any Other Corporation, on the Company is other, would not be disregarded in the event of the bankruptcy or insolvency of an Originator or any Other Corporation and, without limiting the generality of the foregoing, the Seller shall cause each of the following to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionstrue at all times:
(ai) maintaining in full effect its existence, rights and franchises as the Seller is a limited purpose limited liability company under whose activities are restricted in its limited liability company agreement or operating agreement to activities related to purchasing or otherwise acquiring receivables (including the laws of the State of Delaware Receivables) and obtaining related assets and preserving its qualification to do rights and conducting any related or incidental business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement activities it deems necessary or appropriate to properly administer this Agreement and permit and effectuate carry out its primary purpose, including entering into agreements like the transactions contemplated hereby and therebyTransaction Documents;
(bii) maintaining the Seller conducts its own deposit accountsaffairs strictly in accordance with its limited liability company agreement or operating agreement and observes all necessary, separate from those of each Member appropriate and any of their respective officers and Affiliates;
customary limited liability company formalities, including (cA) conducting all material transactions between the Company and any holding duly noticed regular meetings of its Affiliates on an arm’s length basis board of directors and on commercially reasonable terms;
all special meetings appropriate to authorize all limited liability company action, (dB) allocating fairly keeping separate and reasonably the cost accurate minutes of any shared overhead expensessuch meetings, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(eC) conducting its affairs separately from those of each Member and its officers and Affiliatespassing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts and financial statementsaccounts, including intercompany transaction accounts;
(fiii) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Existing Deal Documents, the Seller 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 Seller 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, the Agent and each Group Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(kiv) maintaining all the Seller conducts its business from an office separate from that of its assets the Other Corporations (but which may be located in its own name the same facility as one or more of the Other Corporations); the Seller has stationery and other business forms and a mailing address and a telephone number separate from that of the Other Corporations.
(v) the Seller does not commingling its assets with those direct or participate in the management of any other Personof the Other Corporations’ operations;
(lvi) paying the Seller is adequately capitalized in light of its contemplated business;
(vii) the Seller provides for its own operating expenses and other liabilities out of from its own funds;
(mviii) observing all limited liability company formalities, including maintaining meeting minutes or record meeting the Seller maintains its assets and acting on behalf transactions separately from those of itself only pursuant to due authorization, required hereby the Other Corporations and evidences such assets and transactions by appropriate entries in books and records separate and distinct from those of the Certificate of Formation;
(n) maintaining adequate capital for Other Corporations; the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding Seller holds itself out to the public under the Seller’s own name as a legal entity separate and distinct from the Other Corporations; the Seller has not, and does not presently, hold itself out as having agreed to pay, or as being liable primarily or secondarily for, any obligations of the Other Corporations; and no Affiliate of the Seller has been appointed to act as, and no Affiliate of the Seller is currently acting as, its agent, except as expressly contemplated by this Agreement, the other Transaction Documents and the Existing Deal Documents;
(ix) other than as expressly permitted hereunder and under the other Transaction Documents, the Seller does not maintain any joint account with any Other Corporation, the funds of the Seller are not and have not been commingled with those of any Other Corporation and the Seller is not liable as a guarantor or otherwise with respect to any Indebtedness or contractual obligation of any Other Corporation;
(x) the Seller has not made and is not presently making any payment or distribution of assets with respect to any obligation of any Other Corporation or has not granted, and does not grant, any Adverse Claim on any of its assets to secure any obligation of any Other Corporation;
(xi) except as expressly permitted hereunder and by the other Transaction Documents, the Seller has not and does not make loans, advances or otherwise extend credit to any of the Other Corporations;
(xii) the Seller has bills of sale (or similar instruments of assignment) and, if appropriate, UCC-1 financing statements, with respect to all assets purchased from any of the Other Corporations;
(xiii) other than as set forth in the Existing Deal Documents and in connection with the transactions effected thereby, the Seller has not engaged in, and does not engage in, any transaction with any of the Other Corporations, except as permitted by this Agreement and as contemplated by the other Transaction Documents and all material transactions between the Seller and any Other Corporation are made on an arm’s-length basis;
(xiv) to the extent that the Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, including the Memberscosts incurred in so doing are fairly allocated to or among the Seller and such Persons for whose benefit the goods and services are provided, and each of the Seller and each such entity bears its fair share of such costs;
(qxv) correcting all decisions with respect to its business and daily operations are independently made by the Seller (although the officer making any known misunderstanding regarding its separate identityparticular decision may also be an employee, officer or director of an Affiliate of the Seller) and are not dictated by any Affiliate of the Seller (it being understood that the Collection Agent, which is an Affiliate of the Seller, will undertake and perform all of the operations, functions and obligations of it set forth herein and in the other Transaction Documents and it may, to the limited extent permitted herein and in the other Transaction Documents, appoint sub-agents, which may be Affiliates of the Seller, to perform certain of such operations, functions and obligations);
(rxvi) no Other Corporation advances funds to the Seller and no Other Corporation otherwise supplies funds to, or guaranties debts of, the Seller, in each case other than as expressly set forth herein and in the other Transaction Documents; provided, however, that an Other Corporation may provide funds to the Seller in connection with the capitalization of the Seller;
(xvii) the Seller shall at all times maintain at least two independent directors, each of whom (w) is not formingcurrently and has not been during the five years preceding the date of the Agreement a member, acquiring officer, director, employee or holding associate of, or any subsidiaries relative of the foregoing, or a major vendor or supplier of services to, any Other Corporation, (except as contemplated x) is not a current or former officer or employee of the Seller, (y) does not directly or indirectly own any class of voting stock of any Other Corporation or any of their respective Affiliates; provided, that the ownership of up to 5% of any class of stock (other than a limited liability company interest in the Seller) listed on a national stock exchange shall not prevent an individual from meeting the requirements of this clause (xvii), and (z) is otherwise reasonably acceptable to the Investors and the Agent;
(xviii) the limited liability company agreement or operating agreement of the Seller require the affirmative vote of the independent directors before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Customer Agreements or Transaction Documents)Seller, and the Seller to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its members and board of directors; and
(sxix) not identifying itself as a department or division of any Member or any of such Member’s respective officers the Seller has complied with, and Affiliates. The failure currently complies with (and causes to be true and correct) each of the Company facts and assumptions contained in the opinion delivered pursuant to comply with any of the foregoing provisions Section 5.1(q) of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesAgreement.
Appears in 1 contract
Samples: Receivables Purchase Agreement (United Rentals Inc /De)
Separateness. Each (i) The Transferor will at all times have at least one "manager" (as defined in the Transferor's limited liability agreement as in effect on the date hereof) who will be (x) a natural person and (y) a Person who (A) shall not have been at the time of such Person's appointment, and may not have been at any time during the preceding five years and shall not be as long as such Person is a manager of the Members Transferor (i) a director, member, officer, manager, partner, shareholder or employee of the Performance Guarantor or any Originator or any of their respective directors, members, partners, Subsidiaries, shareholders or Affiliates other than the Transferor or the Transferee (collectively, the "Independent Parties"), (ii) a supplier to any of the Independent Parties, (iii) a person controlling or under common control with any directors, members, partners, shareholder or supplier of any of the Independent Parties or (iv) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director for a corporation whose charter documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three years of employment experience with one or more entities that provide, in the Managing Member acknowledges that ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Transferor will at all times have sufficient personnel to run its business and operations and will compensate its employees (if any) from its own available funds for services provided to it. In the Company is event employees of the Transferor participate in pension, insurance and other benefit plans of any Independent Party, the Transferor will on a current basis reimburse such Independent Party for its pro rata share of the costs thereof.
(iii) The Transferor will pay its own liabilities out of its own funds and assets.
(iv) The Transferor will maintain a separate office (a) which if leased from any Independent Party will be on terms no more or less favorable to the Transferor than could be formed obtained in a comparable arm's-length transaction with an unaffiliated Person and operated (b) which will be conspicuously identified as the Transferor's office so it can be easily located by outsiders. The Transferor will use its own electronic mail address, stationery, invoices, checks and telephone and facsimile numbers.
(v) The Transferor will hold itself out and identify itself as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct entity under its own name and not as a division or part of any other Person.
(vi) The Transferor will promptly correct any misunderstanding of which it has knowledge regarding its separate existence and identity.
(vii) The Transferor will prepare and maintain its own full and complete books, records and financial statements separate from any other Person, including taking the following actions:. The Transferor's financial statements will comply with generally accepted accounting principles.
(aviii) maintaining The Transferor will maintain a bank account in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;name.
(bix) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material All business transactions between entered into by the Company and Transferor with any of its Affiliates will be on an arm’s terms that are intrinsically fair and not more or less favorable to the Transferor, as the case may be, than terms and conditions available at the time to the Transferor for comparable arm's-length basis and on commercially reasonable terms;transactions with unaffiliated Persons, it being understood that the Transaction Documents satisfy the provisions of this paragraph (ix).
(dx) allocating fairly and reasonably the cost The Transferor will not assume or guarantee or become obligated for debts of any shared overhead expensesIndependent Party and no Independent Party will assume or guarantee or become obligated for the debts of the Transferor, including office space, with other than as provided in the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting Transaction Documents. The Transferor will not hold its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself credit out as having agreed being available to pay or Guarantee, or as otherwise being liable for, satisfy the obligations of any Member and any of such Member’s respective officers and Affiliates;other Persons.
(hxi) The Transferor will not making acquire obligations or securities of any loans Independent Party. The Transferor will not make loans, advances or extending otherwise extend credit to any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (Independent Party except as expressly contemplated by the Customer Agreements and Originator Purchase Agreement.
(xii) Except to the extent provided in the Transaction Documents);, the Transferor will not commingle any of its money or other assets with the money or assets of any other entity. The Transferor will ensure that its funds will be clearly traceable at each step in any financial transaction.
(jxiii) not acquiring any asset The Transferor will engage in transactions and conduct all other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets business activities solely in its own name and not commingling through its assets with those own authorized officers and agents and will present itself to the public as a separate company. Except to the extent provided in the Transaction Documents, no Independent Party will be appointed agent of any other Person;the Transferor.
(lxiv) paying its own operating expenses and other liabilities out The Transferor will not engage in any transaction with any of its own funds;Affiliates involving any intent to hinder, delay or defraud any Person.
(mxv) observing The Transferor will observe all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;.
(nxvi) maintaining adequate capital for The Transferor will take, or refrain from taking, as the normal obligations reasonably foreseeable case may be, all other actions that are necessary to be taken or not to be taken in light of its contemplated business operations;
order to (ox) not acquiring obligations or ensure that the securities of any Member or any of such Member’s officers assumptions and Affiliates, except as required under factual recitations set forth in the Customer Agreements or Transaction Documents;
(p) holding itself out Specified Bankruptcy Opinion Provisions remain true and correct with respect to the public as a legal entity separate Transferor and distinct from any other Person, including the Members;
(qy) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of those procedures described in such provisions which are applicable to the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesTransferor.
Appears in 1 contract
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights The funds and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other entity, and the Company shall maintain its accounts separate from each Member and any other Person;.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other entity other than the Company and its Subsidiaries (collectively, the "COMPANY GROUP"), and shall conduct its own operating expenses business in its own name or duly adopted assumed name.
(c) The Company shall not form, or cause to be formed, any Subsidiary other than in connection with conducting the Business.
(d) The Company shall act solely through its duly authorized Members, Managers, Officers or agents in the conduct of the Business, and shall conduct the Business so as not to confuse others as to the identity or assets of the Company Group with those of any other entity.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other entity.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call or by unanimous written consent.
(g) Other than the obligations, guarantees or pledges existing on November 18, 2002 and the guarantees of (A) the Energy Plaza building lease obligations of TXU Corp., (B) an Affiliate's obligations with respect to operations in Mexico not to exceed $15 million and (C) an Affiliate's obligations with respect to leased equipment utilized by the Company not to exceed $25 million, the Company shall not (i) guarantee or become obligated for the debts of any Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of any Member, any Manager or any other Person, (ii) pledge its assets for the benefit of any entity, and (iii) other than pursuant to this Note, acquire obligations or securities of any Member, any Manager or any Affiliate, provided, however, that the Company may do all of the foregoing for the benefit of the Company Group.
(h) The Company shall pay its own liabilities out of its own funds;.
(mi) observing all limited liability company formalities, including maintaining meeting minutes The Company Group shall maintain an arms' length relationship or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required other relationship commercially reasonable under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate circumstances and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division in compliance with all regulatory codes of any Member or any of such Member’s respective officers and Affiliates. The failure conduct with their Affiliates outside of the Company to comply with Group.
(j) The Company Group shall use its own separate stationery, invoices, checks and other business forms.
(k) The Company shall correct any known material misunderstanding regarding the separate identity of the foregoing Company Group. Nothing in this Section 3.03 or Section 3.04 herein shall be deemed to prohibit (i) the use of an Affiliate for the provision of services that can be performed cost effectively on a shared services basis, including treasury, payroll, accounting, human resources, legal, environmental, engineering, information technology and other administrative services, or (ii) participation in TXU Corp.'s money pool for its system companies in accordance with the guidelines established from time to time therefore, as long as, in each case, such activities are otherwise in compliance with the provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates3.03 and Section 3.04.
Appears in 1 contract
Samples: Exchangeable Subordinated Note (Txu Us Holdings Co)
Separateness. Each Obligor will, and will cause each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsSubsidiaries to:
(a) maintaining in full effect its existencemaintain accounts of such Obligor or such Subsidiary, rights and franchises as a limited liability company under the laws applicable, separate from those of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement Sponsor and each other instrument of their respective Affiliates (that are not Obligors or agreement necessary subsidiaries thereof) with commercial banking institutions and will not commingle their funds with those of Sponsor or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyany of its Affiliates (that are not Obligors or subsidiaries thereof);
(b) maintaining its own deposit accountscause the assets and liabilities of such Obligor or such Subsidiary, separate as applicable, to be readily distinguishable from those the assets and liabilities of Sponsor and each Member and any of their respective officers and AffiliatesAffiliates (that are not Obligors or subsidiaries thereof);
(c) conducting pay, or cause to be paid, from its own funds and assets all material transactions between obligations and Indebtedness incurred by it, and not from the Company funds and assets of Sponsor or any of its their respective Affiliates on an arm’s length basis and on commercially reasonable terms(that are not Obligors or subsidiaries thereof);
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting conduct its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting business solely in its own limited liability company respective name in a manner not misleading to other Persons as to its identity and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting shall correct any known misunderstanding regarding its separate identity;
(re) not formingobtain proper authorization from member(s), acquiring director(s) and manager(s) as required by such Obligor’s or holding any subsidiaries such Subsidiary’s, as applicable, limited liability company agreement (except as contemplated by the Customer Agreements or Transaction Documents)comparable organizational documents) for all of its limited liability company (or other applicable) actions; and
(sf) not identifying itself comply with the terms of such Obligor’s or such Subsidiary’s, as a department applicable, limited liability company agreement (or division comparable organizational documents), it being understood and agreed by the parties hereto that immaterial breaches of this Section 8.13 that (i) are not, in the aggregate, misleading as to the identity of any Member Obligor or any of such Member’s respective officers Subsidiary and Affiliates. The failure of (ii) otherwise do not materially undermine the Company purpose intended to comply with any of be served by the foregoing provisions of this Section 8.6 8.13 shall not affect the status not, in each of the Company as clauses (a) through (c) above, be deemed a separate legal Person or the limited liability breach of the Members, or their respective Affiliatesthis Section 8.13.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Greenbacker Renewable Energy Co LLC)
Separateness. Each It (i) acknowledges that each of the Members and Lenders is entering into the Managing Member acknowledges that the Company is to be formed and operated transactions contemplated by this Agreement in reliance upon its identity as a special purpose entity, distinct and legal entity that is separate from the other Borrower Parties, (ii) shall take all steps specifically required by this Agreement or reasonably required by the Administrative Agent or any Member Lender to continue its identity as a separate legal entity and to make it apparent to third Persons that each Credit Party is an entity (or its Affiliates. Accordinglyin the case of the Borrower, the Managing Member shall cause the Company to maintain its existence separate a partnership) with assets and liabilities distinct from any those of the other PersonBorrower Parties, including taking and is not a division of such Persons and (iii) in furtherance of the following actionsforegoing, it shall:
(a) maintaining in full effect maintain its existence, rights books and franchises as a limited liability company under the laws Records and bank accounts separate from those of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyBorrower Party;
(b) maintaining its own deposit accountsat all times hold itself out to the public and all other Persons as a legal entity (or in the case of the Borrower, a partnership) separate from those of each Member its member (if applicable) and any of their respective officers and Affiliatesother Person;
(c) conducting all material transactions between file tax returns, if any, for itself as may be required under Applicable Law, to the Company extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any of its Affiliates on an arm’s length basis and on commercially reasonable termstaxes so required to be paid under Applicable Law;
(d) allocating fairly and reasonably except as contemplated herein or in any other Transaction Document:, pay its own liabilities only out of its own funds, not commingle the cost Borrower’s assets with assets of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(e) conducting not hold out its affairs separately from those credit or assets as being available to satisfy the obligations of each Member others and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statementsnot guarantee any obligations of any other Person;
(f) acting solely in not pledge its own limited liability company name and not that assets to secure the obligations of any other Person;
(g) not holding itself out as having agreed strictly comply with all organizational formalities to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliatesmaintain its separate existence;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliatesmaintain separate financial statements for itself;
(i) not creating, granting or suffering to exist have any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents)employees;
(j) not acquiring any asset allocate fairly and reasonably with other than any asset conveyed to the Company pursuant to Persons any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documentsits overheads for shared office space (if any);
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting correct any known misunderstanding regarding its separate identity;
(rl) ensure it does not forming, acquiring engage in any business or holding activity and does not own any subsidiaries (assets or property except as contemplated by set forth in this Agreement and the Customer Agreements or other Transaction Documents, nor incur any indebtedness or liability other than any incurred pursuant to the Transaction Documents;
(m) in the case of the Borrower, act solely in its own name (including through the General Partner, as applicable), and cause all representatives of General Partner from time to time to act at all times with respect to it consistently and in furtherance of the foregoing and in its best interests;
(n) maintain its assets in a manner that facilitates their identification and segregation from those of the Affiliates of each Credit Party; and
(so) not identifying itself as a department or division to have it acquire any securities of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesother Person.
Appears in 1 contract
Samples: Asset Backed Revolving Credit Agreement (CURO Group Holdings Corp.)
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to will at all times:
(i) maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company and remain in good standing under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of Delaware;
(ii) observe all limited liability company procedures required by this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyAct;
(biii) maintaining ensure that (A) its own deposit accountsbusiness is at all times managed by or under the direction of the Board of Managers, (B) the Board of Managers has authorized all actions requiring authorization and (C) when required by law or by this Agreement, it has obtained authorization for action from its Member;
(iv) maintain its books, financial statements and other documents and records separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of Member, its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of or any other Person;
(gv) ensure that its assets are not holding commingled with those of the Member or its Affiliates, and not hold itself out as having agreed to pay or Guarantee, or as otherwise being liable for, for the obligations debts of any Member and any of such Member’s respective officers and Affiliatesanother;
(hvi) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness ofmaintain its bank accounts and books of account separate from those of its Affiliates, the Members Member or their respective Affiliates;
(i) not creating, granting its Affiliates or suffering to exist any Liens (other than Permitted Liens) on property of Person or entity; and ensure that its funds and other assets will at all times be readily distinguishable from the Company (except as contemplated by the Customer Agreements funds and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all assets of its assets in Affiliates, the Member and its own name and not commingling its assets with those of Affiliates or any other Person;
(lvii) paying act solely in its own operating expenses name and other liabilities out of through its own fundsmanagers and agents so as not to mislead others about its identity or the identity of any Affiliate and correct any known misunderstanding about its separate identity, and conduct all oral and written communications, solely in its own name;
(mviii) observing all limited liability company formalitiesseparately manage its liabilities from those of the Member and its Affiliates and pay its own liabilities, including maintaining meeting minutes all administrative expenses, from its own assets, except that (A) the Member or record meeting its Affiliates may pay some of the organizational costs of the Company, and acting on behalf the Company will reimburse the Member or its Affiliates for its allocable portion of itself only pursuant to due authorization, required hereby and shared expenses paid by the Certificate of FormationMember or its Affiliates and (B) the Member or its Affiliates may pay fees and expenses and indemnify parties under Section 2.5(c);
(nix) maintaining maintain arm’s length relationships with its Affiliates;
(x) not create, incur or assume any indebtedness, other than the Securities and other obligations permitted under the Basic Documents, unless the indebtedness is rated by each Rating Agency then rating the outstanding Securities at the request of the Member or the Company, or unless the Rating Agency Condition is satisfied;
(xi) not create, incur or assume any indebtedness or issue any security or sell or transfer any Receivables or Underlying ABS to a Trust or other Person which issues a security relating to the Receivables or Underlying ABS unless the debt or security holders agree or are deemed to have agreed that, before the date that is one year and one day (or, if longer, any applicable preference period) after the payment in full of all of the debt or securities of the Company and all of the debt or securities issued through the Trusts, they will not to start or pursue against, or join any other Person in starting or pursuing against, the Company any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings under any bankruptcy or similar law;
(xii) operate so that it would not be substantively consolidated for purposes of applicable bankruptcy laws with another entity;
(xiii) have a sufficient number of Managers and other authorized agents to manage its operations; and
(xiv) maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.
Appears in 1 contract
Separateness. (a) Each Credit Party shall, and shall cause each of its Subsidiaries to, (a) pay its debts and liabilities only from its own assets, (b) comply with the provisions of its Governing Documents, (c) do all things necessary to observe organizational formalities and to preserve its existence, and not amend, modify, waive provisions of or otherwise change its Governing Documents, (d) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that the financial statements of such Affiliates may be consolidated to the extent consolidation is required under GAAP or as a matter of Requirements of Law; provided, that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the Members Credit Parties and their Subsidiaries from such Affiliate and to indicate that each Credit Party’s and each Subsidiary’s assets and credit are not available to satisfy the Managing Member acknowledges that debts and other obligations of such Affiliate or any other Person and (ii) such assets shall also be listed on each Credit Party’s and each Subsidiary’s own separate balance sheet) and file its own tax returns (except to the Company extent consolidation is required or permitted under Requirements of Law), (e) be, and at all times hold itself out to be formed and operated as the public as, a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect correct any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, conduct business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and not identify itself or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably as a division of the cost of any shared overhead expensesother, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining 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;
operations and shall remain Solvent, (og) not acquiring obligations commingle its funds or the securities other assets with those of any Member Affiliate or any other Person and shall maintain its properties and assets in such a manner that it would not be costly or difficult to identify, segregate or ascertain its properties and assets from those of such Member’s officers others, (h) maintain its properties, assets and Affiliates, except as required under the Customer Agreements accounts separate from those of any Affiliate or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, (i) not hold itself out to be responsible for the debts or obligations of any other Person, (j) maintain a sufficient number of employees, including management executives and officers, in light of contemplated business operations, (k) use separate stationary, invoices and checks bearing its own name, (l) maintain separate customer and supplier relationships and separate invoice of such customers and suppliers, and (m) not pledge its assets to secure the Members;obligations of any other Person, (whether corporate, partnership, limited liability company or other) or own any equity interest in any other entity.
(qb) correcting The Credit Parties and their Subsidiaries shall be treated, in all respects, as “unrestricted subsidiaries” under or otherwise not be subject to or obligated in respect of (or required to be subject to or obligated in respect of) any known misunderstanding regarding its separate identity;
representations, warranties, covenants, (r) not formingincluding, acquiring without limitation, any requirement to guaranty any obligations or holding grant any subsidiaries (except as contemplated by the Customer Agreements Liens or Transaction Documents); and
(s) not identifying itself as a department or division any other security interest in favor of any Member creditor), events of default or any other terms or conditions or provisions of Loan, note, credit documents, indentures, purchase agreements or similar arrangements involving Parent or any of such Member’s respective officers and Affiliates. The failure of its Affiliates (other than the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCredit Parties).
Appears in 1 contract
Samples: Credit Agreement (Green Plains Inc.)
Separateness. Each of (a) The Trust shall observe all the Members and legal formalities as may be specified in this Agreement or the Managing Member acknowledges that the Company is Delaware Act with respect to be formed and operated as maintaining a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its legal existence separate and distinct from independent of any other PersonAffiliate, including taking the following actionsOwner Trustee or any Affiliate of the Owner Trustee, the Owners or any Affiliate of any Owner. Specifically, except as otherwise contemplated by the Trust Related Agreements, the Trust shall:
(ai) maintaining in full effect its existence, rights maintain books and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, records separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(gii) not holding itself out as having agreed to pay or Guaranteemaintain its bank accounts, or as otherwise being liable forif any, the obligations of separate from any Member and any of such Member’s respective officers and Affiliatesother Person;
(hiii) not making commingle its assets with those of any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering other Person and to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining hold all of its assets in its own name and not commingling name;
(iv) conduct its own business in its own name;
(v) maintain separate financial statements, showing its assets with and liabilities separate and apart from those of any other Person;
(lvi) paying pay its own operating liabilities and expenses and other liabilities only out of its own funds or, to the extent that any such expenses are paid by an Owner, reimburse the Owner for such expenses paid by it;
(vii) observe all organizational formalities required by this Agreement or the Delaware Act;
(viii) maintain an arm's length relationship with its Affiliates and enter into transactions with Affiliates only on a commercially reasonable basis;
(ix) pay the salaries of its own employees, if any, from its own funds;
(mx) observing all limited liability company formalities, including maintaining meeting minutes not guarantee or record meeting and acting on behalf become obligated for the debts of itself only pursuant to due authorization, required hereby and by the Certificate of Formationany other entity or Person;
(nxi) maintaining adequate capital for not hold out its credit as being available to satisfy the normal obligations reasonably foreseeable in light of its contemplated business operationsany other Person;
(oxii) not acquiring acquire the obligations or the securities of any Member or any of such Member’s officers and its Affiliates, except as required under the Customer Agreements Owners, or Transaction DocumentsAffiliates of an Owner;
(pxiii) holding itself out not make loans to the public as a legal entity separate and distinct from any other PersonPerson or, including except with respect to any Collateral held by the MembersTrust, buy or hold evidence of indebtedness issued by any other Person (other than cash and investment-grade securities);
(qxiv) correcting allocate fairly and reasonably any overhead expenses, if any, that are shared with an Affiliate, including paying for office space and services performed by any employee of an Affiliate;
(xv) use separate stationery and invoices and not use checks in its Affiliate's name;
(xvi) hold itself out as a separate entity;
(xvii) correct any known misunderstanding regarding its separate identity;
(rxviii) not forming, acquiring or holding identify itself as a division of any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents)other Person; and
(sxix) maintain adequate capital in light of its contemplated business operations.
(b) The Trust shall not identifying itself incur any obligations other than with respect to the Trust Related Agreements for a Series of Securities or obligations which are without recourse, other than to Securities held by the Trust.
(c) The Trust shall remain solvent and will pay its debts and liabilities from its assets as a department the same shall become due.
(d) The Trust shall not engage in any dissolution, liquidation, consolidation, merger or division sale of assets.
(e) All sales made by the Trust of any Member or any Trust Property shall be made at the fair market value of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesTrust Property.
Appears in 1 contract
Samples: Trust Agreement (Jv Capital Trust)
Separateness. Each of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights The funds and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property assets of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) shall not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets be commingled with those of any other entity, and the Company shall maintain its accounts separate from each Member and any other Person;.
(lb) paying The Company shall not hold itself out as being liable for the debts of any other entity other than the Company and its Subsidiaries (collectively, the "Company Group"), and shall conduct its own operating expenses business in its own name or duly adopted assumed name.
(c) The Company shall not form, or cause to be formed, any Subsidiary other than in connection with conducting the Business.
(d) The Company shall act solely through its duly authorized Members, Managers, Officers or agents in the conduct of the Business, and shall conduct the Business so as not to confuse others as to the identity or assets of the Company Group with those of any other entity.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other entity.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call or by unanimous written consent.
(g) Other than the obligations, guarantees or pledges existing on November 18, 2002 and the guarantees of (A) the Energy Plaza building lease obligations of TXU Corp., (B) an Affiliate's obligations with respect to operations in Mexico not to exceed $15 million and (C) an Affiliate's obligations with respect to leased equipment utilized by the Company not to exceed $25 million, the Company shall not (i) guarantee or become obligated for the debts of any Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of any Member, any Manager or any other Person, (ii) pledge its assets for the benefit of any entity, and (iii) other than pursuant to this Note, acquire obligations or securities of any Member, any Manager or any Affiliate, provided, however, that the Company may do all of the foregoing for the benefit of the Company Group.
(h) The Company shall pay its own liabilities out of its own funds;.
(mi) observing all limited liability company formalities, including maintaining meeting minutes The Company Group shall maintain an arms' length relationship or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required other relationship commercially reasonable under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate circumstances and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division in compliance with all regulatory codes of any Member or any of such Member’s respective officers and Affiliates. The failure conduct with their Affiliates outside of the Company to comply with Group.
(j) The Company Group shall use its own separate stationery, invoices, checks and other business forms.
(k) The Company shall correct any known material misunderstanding regarding the separate identity of the foregoing Company Group. Nothing in this Section 3.03 or Section 3.04 herein shall be deemed to prohibit (i) the use of an Affiliate for the provision of services that can be performed cost effectively on a shared services basis, including treasury, payroll, accounting, human resources, legal, environmental, engineering, information technology and other administrative services, or (ii) participation in TXU Corp.'s money pool for its system companies in accordance with the guidelines established from time to time therefore, as long as, in each case, such activities are otherwise in compliance with the provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates3.03 and Section 3.04.
Appears in 1 contract
Samples: Exchange Agreement (Txu Corp /Tx/)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Administrative Agent may from time to time reasonably request, to maintain the Borrower’s identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(c) to the extent necessary for the operation of its business, (i) fail to maintain an email address not used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower’s own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) either (i) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or (ii) make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than quarterly or otherwise, in certain other irregular cases, unless in each case made in accordance with appropriate limited liability company formalities and consistent with sound business judgment and Section 5.11;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or be a party to any division or dissolve, granting terminate or suffering to exist any Liens (other than Permitted Liens) on property liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the Company (except as contemplated by the Customer Agreements and the Transaction Documents)Administrative Agent’s prior written consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower’s certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Secured Obligations;
(n) fail to remain Solvent; provided, that this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Credit Party or Guarantor or any general partner, member, principal or Affiliate of any other Credit Party or Guarantor, except with the Administrative Agent’s consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of the Company, any other Credit Party or Guarantor, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of the Company and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Secured Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(sy) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(z) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(aa) acquire obligations or securities of its partners, members, shareholders or other Affiliates. The failure , as applicable;
(bb) fail to have Organizational Documents that provide that, so long as the Obligations of the Company Borrower shall be outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Borrower, or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Director;
(cc) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with any respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower; and
(dd) fail to observe all requisite organizational formalities under Delaware law. In the event of any inconsistency between the covenants set forth in this Section 5.6 or the other covenants set forth in this Agreement, or in the event that any covenant set forth in this Section 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.6 shall control. The Company will not take any action inconsistent with the terms of this Section 8.6 shall not affect the status of 5.6 and has taken such actions and implemented such procedures as are necessary on its part to ensure that the Company and each of its Affiliates will take all steps necessary to maintain the Borrower’s identity as a separate legal Person or entity from the limited liability Company and its Affiliates and to make it manifest to third parties that the Borrower is an entity with assets and liabilities distinct from those of the Members, or their respective Company and its Affiliates.
Appears in 1 contract
Separateness. Each (i) The Seller shall at all times maintain at least one independent Manager who (w) is not currently and has not been during the five years preceding the date of this Agreement an officer, director, manager or employee of, or a major vendor or supplier of services to, an Affiliate of the Members Seller or any Other Medco Company, (x) is not a current or former officer or employee of the Seller, (y) is not a stockholder or equity owner of any Other Medco Company or any of their respective Affiliates (except through a mutual fund or similar pooled investment vehicle) and (z) who (A) has prior experience as an independent director for a corporation and/or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers, as the case may be, thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, or has otherwise been engaged for at least three years in the business of providing, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Seller shall not direct or participate in the management of any other Person's operations.
(iii) The Seller shall conduct its business from an office separate from that of the Other Medco Companies (but which may be located in the same facility as one or more of the Other Medco Companies). The Seller shall have stationery and other business forms separate from that of the Other Medco Companies.
(iv) The Seller shall at all times be adequately capitalized in light of its contemplated business.
(v) The Seller shall at all times provide for its own operating expenses and liabilities from its own funds except that (A) common overhead expenses may be shared by the Seller and the Managing Member acknowledges that Other Medco Companies on a basis reasonably related to use and (B) the Company is Servicer may pay operating expenses on the Seller's behalf so long as the Seller promptly reimburses the Servicer for such expenses out of the Seller's own funds.
(vi) The Seller shall maintain its assets and transactions separately from those of any other Person, and the Seller shall reflect such assets and transactions in financial statements separate and distinct from those of the Other Medco Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Person. The Seller shall hold itself out to be formed and operated the public under the Seller's own name as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence legal entity separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or . The Seller shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding hold itself out as having agreed to pay or Guaranteepay, or as otherwise being liable liable, primarily or secondarily, for, the any obligations of any Member other Person.
(vii) The Seller shall not maintain any joint account with any Other Medco Company or become liable as a guarantor or otherwise with respect to any Indebtedness or contractual obligation of any Other Medco Company. The membership interests of the Seller and any Indebtedness (whether or not represented by promissory notes) of or issued by the Seller to the Originator or any of its Subsidiaries may not be pledged to secure Indebtedness of the Originator or any Other Medco Company.
(viii) The Seller shall not make any payment or distribution of assets with respect to any obligation of any other Person or grant an Adverse Claim on any of its assets to secure any obligation of any Other Person.
(ix) The Seller shall not make loans, advances or otherwise extend credit to any other Person except as expressly contemplated by the Originator Purchase Agreement.
(x) The Seller shall hold regular duly noticed meetings (or authorize actions by unanimous written consent) of its Board of Managers, make and retain minutes of such Member’s respective officers meetings and Affiliates;otherwise observe all limited liability company formalities.
(hxi) not making any loans The Seller shall have bills of sale (or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(isimilar instruments of assignment) not creating, granting or suffering with respect to exist any Liens all assets (other than Permitted LiensReceivables or interests therein acquired under the Originator Purchase Agreement) on property purchased from any of the Company Other Medco Companies, in each case to the extent such bills of sale would be customarily prepared in transactions with non-Affiliates.
(xii) The Seller shall not engage in any transaction with any other Person, except as contemplated by the Customer Agreements this Agreement and the Transaction Documents);Originator Purchase Agreement.
(jxiii) not acquiring any asset other than any asset conveyed to the Company pursuant to The Seller shall prepare its financial statements separately from those of any of the Customer Agreements or Transaction Documents or purchased by the Other Medco Companies and shall insure that any consolidated financial statements of any Other Medco Company in accordance that are filed with the Customer Agreements Securities and Exchange Commission or Transaction Documents;any other Official Body or are furnished to any creditors of any Other Medco Company have notes clearly stating that (A) the Seller is the owner of the Pool Receivables and is a separate entity and (B) the Seller's assets will be available first and foremost to satisfy the claims of the creditors of the Seller.
(kxiv) maintaining The Seller shall take, or refrain from taking, as the case may be, all of 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 with respect to the Seller and (y) comply with those procedures described in such provisions which are applicable to the Seller.
(xv) The Seller will not commingle its assets in its own name and not commingling its funds or assets with those of any other Person;Person or entity. The Seller will provide separately for its expenses and liabilities from its own funds (except as provided in paragraph (v) above), and will fairly and reasonably allocate any expenses associated with services provided by common employees, office space, or other overhead and administrative expenses with any affiliate.
(lxvi) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of The Seller will not identify itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities as a division of any Member other person or any of such Member’s officers entity, and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding will hold itself out to creditors and the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting entity and will correct any known misunderstanding regarding its separate identity;.
(rxvii) not forming, acquiring or holding any subsidiaries The Seller will transact all business with Affiliates on an arms' length basis and pursuant to commercially reasonable agreements.
(except as xviii) After entering into the transactions contemplated by this Agreement and the Customer Agreements or Transaction Documents); and
(s) Originator Purchase Agreement, the Seller will not identifying itself as a department or division of any Member or transfer any of such Member’s respective officers its assets to the Originator other than (i) transfers for fair or reasonably equivalent consideration and Affiliateswithout the intent to hinder, delay or defraud the Seller's creditors, and (ii) distributions that are not fraudulent or in violation of applicable entity law. The failure of If, after entering into the Company to comply with transactions contemplated by this Agreement and the Originator Purchase Agreement, the Originator transfers any of its assets to the foregoing provisions of this Section 8.6 shall not affect Seller, the status of Seller will properly account for such transfers as capital contributions or sales made in accordance with the Company as a separate legal Person or the Originator Purchase Agreement and its limited liability of the Memberscompany agreement, or their respective Affiliatesas applicable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Medco Health Solutions Inc)
Separateness. Each (a) Except as provided in the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring securities of the Member, any Indebtedness ofSpecial Member, the Members any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affili ates.
(k) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting The Company shall correct any known misunderstanding regarding its separate identity;
(r) not forming. Failure of the Company, acquiring or holding the Member, any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pse&g Transition Funding LLC)
Separateness. Each of the Members The guarantor shall at all times (a) maintain its bank accounts, books and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and records separate from any Member other Person and otherwise ensure that the records and books of the Guarantor reflect the separate existence of the Guarantor and its assets, (b) separately identify and segregate its funds and assets from those of any other Person and shall not commingle its funds or assets with those of any other Person, (c) hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself to the public as a company separate from its member(s), Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), (e) maintain its financial statements, accounting records, and other entity documents separate from any other Person and shall issue and approve its own separate financial statements annually and shall ensure that the Guarantor’s books and records reflect the Guarantor’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results of the Guarantor may be included in the consolidated financial statements of its Affiliates. Accordingly, provided that such consolidated financial statements contain a footnote indicating that the Managing Member Guarantor is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations and liabilities out of its funds and assets and shall cause not permit other Persons to pay the Company Guarantor’s liabilities or obligations, (g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (h) maintain an arm’s-length relationship with and not be or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit as being available to satisfy the obligations of any other Person, in each case other than pursuant to this Guaranty and the other Loan Documents, (j) not acquire the debt or securities of its member(s) or any of the direct or indirect owners of the Guarantor or the Guarantor’s Affiliates, (k) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationery, invoices and checks, (l) except for the Liens granted pursuant to the Security Documents to which it is a party, not pledge its assets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other Person, (n) not make loans to any Person, (o) not enter into or be a party to, any transaction with its member(s) or any Affiliate of the Guarantor except in the ordinary course of its business and on terms that are fair and no less favorable to the Guarantor than those terms that would be obtained in a comparable arm’s-length transaction with an unrelated third party, (p) promptly correct any known misunderstanding regarding the separate existence and identity of the Guarantor, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capitalization in light of its contemplated business and operations, (s) take all appropriate action necessary to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company in good standing under the laws of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Guaranty and by applicable law (including the Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect Limited Liability Company Act), as the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliatescase may be, and maintaining keep accurate and separate booksproper books and records of account, records (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions with respect to its business and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company daily operations have been duly authorized in accordance with the Customer Agreements or Transaction its Organizational Documents;
, (kw) maintaining all hold any meetings of its assets in managers and/or its own name and not commingling its assets with member(s) separately from those of any other Person;
, (lx) paying its own operating expenses ensure that the Guarantor’s officers and other liabilities out of its own funds;
(m) observing all limited liability company formalitiesmanagers do not, including maintaining meeting minutes or record meeting and acting in such capacities, act on behalf of itself only pursuant to due authorizationother Persons and (y) observe, required hereby follow and by ensure the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure accuracy of the Company factual assumptions set forth in the non-consolidation opinion of Hxxxxx & Bxxxx, LLP dated on or about the Funding Date and referred to comply with any in Section 3.2(h) of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCredit Agreement.
Appears in 1 contract
Samples: Guaranty (Cig Wireless Corp.)
Separateness. Each The Seller shall (i) own no assets, and shall not engage in any business, other than the assets and transactions specifically contemplated by this Agreement; (ii) not incur any Indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) with respect to the Asset Documents and (B) as otherwise permitted under this Agreement; (iii) not make any loans or advances to any Affiliate or third party and shall not acquire obligations or securities of its Affiliates; (iv) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (v) comply with the Members provisions of its Governing Documents; (vi) do all things necessary to observe organizational formalities and to preserve its existence, and shall not amend, modify or otherwise change its Governing Documents; (vii) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the Managing Member acknowledges that extent consolidation is required under the Company is to be formed and operated GAAP consistently applied or as a special purpose entitymatter of Applicable Law) and file its own tax returns (except to the extent consolidation is required or permitted under Applicable Law); (viii) be, distinct and separate from any Member or its Affiliates. Accordinglyat all times shall hold itself out to the public as, the Managing Member shall cause the Company to maintain its existence a legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect shall correct any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, shall conduct business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and shall not identify itself or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property a division of the Company other; (except as contemplated by the Customer Agreements and the Transaction Documents);
(jix) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining 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;
; (ox) not acquiring obligations engage in or the securities suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) not commingle its funds or other assets with those of any Member Affiliate or any other Person; (xii) maintain its accounts separate from those of such Member’s officers and Affiliates, except as required under the Customer Agreements any Affiliate or Transaction Documents;
any other Person; (pxiii) holding shall not hold itself out to be responsible for the public as a legal entity separate and distinct from debts or obligations of any other Person; (xiv) shall not, including without the Members;
vote of its Independent Director, (qA) correcting file or consent to the filing of any known misunderstanding regarding Insolvency Proceeding with respect to the 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 the Seller, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its separate identity;
Properties, or (rC) not forming, acquiring make any assignment for the benefit of the Seller’s creditors; (xv) shall have at all times at least one (1) Independent Director (or holding any subsidiaries (except such greater number as contemplated required by the Customer Agreements or Transaction DocumentsPurchaser); and
(sxvi) not identifying itself as shall maintain an arm’s length relationship with its Affiliates; (xvii) maintain a department or division sufficient number of employees in light of contemplated business operations; (xviii) use separate stationary, invoices and checks; and (xvix) allocate fairly and reasonably any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesoverhead for shared office space.
Appears in 1 contract
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the Managers may act by written consent in accordance with Section 4.13 hereof. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company's obligations under the Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring securities of the Member, any Indebtedness ofSpecial Member, the Members any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(l) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall use its own separate stationery, including maintaining meeting minutes or record meeting invoices, checks and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;other business forms.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall correct any known misunderstanding regarding its contemplated business operations;separate identity.
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(qp) correcting any known misunderstanding regarding The Company shall file its separate identity;
own tax returns, if any, as may be required under applicable law, to the extent (ra) not forming, acquiring part of a consolidated group filing a consolidated return or holding any subsidiaries returns or (except as contemplated by the Customer Agreements or Transaction Documents); and
(sb) not identifying itself treated as a department division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; Failure of the Company, the Member, or division of any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Reliant Energy Transition Bond Co LLC)
Separateness. Each (a) Except as provided in the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Managers, officers or agents in the conduct of its business, shall hold itself out as an entity separate from all other Persons, shall correct any known misunderstandings regarding its separate identity and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements, and shall not commingle its records and books of account with the records and books of account of the Member or any other Person;, provided that the Company may maintain and file consolidated financial statements as permitted by GAAP.
(f) The Managers shall hold appropriate meetings or act upon written consent to authorize all of its limited liability company actions, which meetings may be held by telephone conference call. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, the Special Member, the Manager nor any other Person shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, the Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, the Special Member, any Manager or any other Person, shall not pledge its assets for the benefit of any Person other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring any Indebtedness ofsecurities of the Member, the Members Special Member, any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to any Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, the Special Member, any Manager or any other Person.
(l) The Company shall use its own separate stationery, invoices, checks and other business forms.
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting The Company shall correct any known misunderstanding regarding its separate identity;.
(rn) not formingFailure of the Company, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member, the Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, the Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Florida Power & Light Co)
Separateness. Each The Borrower is operated in such a manner that the separate corporate existence of the Members Borrower, on the one hand, and The Andersons or any Affiliate thereof, on the Managing Member acknowledges that other, would not be disregarded in the Company is to be formed and operated as a special purpose entityevent of the bankruptcy or insolvency of any of The Andersons or any Affiliate thereof and, distinct and separate from any Member or its Affiliates. Accordingly, without limiting the Managing Member shall cause generality of the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsforegoing:
(ai) maintaining in full effect its existence, rights and franchises as the Borrower is a limited purpose limited liability company under whose activities are restricted in its organizational documents to activities related to purchasing or otherwise acquiring the laws of the State of Delaware Equipment and obtaining related assets and preserving its qualification to do rights and conducting any related or incidental business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement activities it deems necessary or appropriate to properly administer carry out its primary purpose, including entering into this Agreement and permit and effectuate the transactions contemplated hereby and therebyother Transaction Documents;
(bii) maintaining the Borrower has not engaged, or presently engages, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the Borrower entered into any agreement other than this Agreement and the other Transaction Documents to which it is a party;
(iii) (A) the Borrower maintains its own deposit account or accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office spaceAffiliates, with commercial banking institutions, (B) the Managing Member funds of the Borrower are not and have not been diverted to any other Person for any use other than the Class B Members and any corporate use of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliatesthe Borrower, and maintaining accurate and separate books(C), records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of except as may be expressly permitted or required by this Agreement or any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable forTransaction Document, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property funds of the Company (except as contemplated by the Customer Agreements Borrower are not and the Transaction Documents);
(j) have not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets been commingled with those of any other Person;
(liv) paying its own operating expenses to the extent that the Borrower contracts or does business with vendors or service providers where the goods and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital services provided are partially for the normal obligations reasonably foreseeable in light benefit of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding costs incurred in so doing are fairly allocated to or among the Borrower and such entities for whose benefit the goods and services are provided, and the Borrower and each such entity bears its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by fair share of such costs; and all material transactions between the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or Borrower and any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 its Affiliates shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliates.be only on an arm’s-length basis;
Appears in 1 contract
Samples: Term Loan Agreement (Andersons Inc)
Separateness. Each (i) The Borrower will at all times have at least one "manager" (as defined in the Borrower's limited liability agreement as in effect on the Closing Date) who will be (x) a natural person and (y) a Person who (A) shall not have been at the time of such Person's appointment, and may not have been at any time during the preceding five years and shall not be as long as such Person is a manager of the Members Borrower (i) a director, member, officer, manager, partner, shareholder or employee of the Parent Guarantor, any Originator or any of their respective directors, members, partners, Subsidiaries, shareholders or Affiliates other than the Borrower and the Managing Member acknowledges Transferor (collectively, the "Independent Parties"), (ii) a supplier to any of the Independent Parties, (iii) a person controlling or under common control with any directors, members, partners, shareholder or supplier of any of the Independent Parties or (iv) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three years of employment experience with one or more entities that provide, in the Company is ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Borrower will at all times have sufficient personnel and/or duly compensated agents to run its business and operations and will compensate its employees (if any) and agents from its own available funds for services provided to it. In the event employees of the Borrower participate in pension, insurance and other benefit plans of any Independent Party, the Borrower will on a current basis reimburse such Independent Party for its pro rata share of the costs thereof.
(iii) The Borrower will pay its own liabilities out of its own funds and assets.
(iv) The Borrower will maintain a separate office (a) which if leased from any Independent Party will be formed on terms no more or less favorable to the Borrower than could be obtained in a comparable arm's-length transaction with an unaffiliated Person and operated (b) which will be conspicuously identified as the Borrower's office so it can be easily located by outsiders. The Borrower will use its own electronic mail address, stationery, invoices, checks and telephone and facsimile numbers.
(v) The Borrower will hold itself out and identify itself as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct entity under its own name and not as a division or part of any other Person.
(vi) The Borrower will promptly correct any misunderstanding of which it has knowledge regarding its separate existence and identity.
(vii) The Borrower will prepare and maintain its own full and complete books, records and financial statements separate from any other Person, including taking the following actions:. The Borrower's financial statements will comply with generally accepted accounting principles.
(aviii) maintaining The Borrower will maintain at least one bank account in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;own name.
(bix) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material All business transactions between entered into by the Company and Borrower with any of its Affiliates will be on an arm’s terms that are intrinsically fair and not more or less favorable to the Borrower, as the case may be, than terms and conditions available at the time to the Borrower for comparable arm's-length basis and on commercially reasonable terms;transactions with unaffiliated Persons, it being understood that the Transaction Documents satisfy the provisions of this paragraph (ix).
(dx) allocating fairly and reasonably the cost The Borrower will not assume or guarantee or become obligated for debts of any shared overhead expensesIndependent Party and no Independent Party will assume or guarantee or become obligated for the debts of the Borrower, including office space, with other than as provided in the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting Transaction Documents. The Borrower will not hold its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself credit out as having agreed being available to pay or Guarantee, or as otherwise being liable for, satisfy the obligations of any Member and any of such Member’s respective officers and Affiliates;other Persons.
(hxi) The Borrower will not making acquire obligations or securities of any loans Independent Party. The Borrower will not make loans, advances or extending otherwise extend credit to any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (Independent Party except as expressly contemplated by the Customer Agreements Originator Purchase Agreement and the Transfer Agreement.
(xii) Except to the extent provided in the Transaction Documents);, the Borrower will not commingle any of its money or other assets with the money or assets of any other entity. The Borrower will ensure that its funds will be clearly traceable at each step in any financial transaction.
(jxiii) not acquiring any asset The Borrower will engage in transactions and conduct all other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets business activities solely in its own name and not commingling through its assets with those own authorized officers and agents and will present itself to the public as a separate company. Except to the extent provided in the Transaction Documents, no Independent Party will be appointed agent of any other Person;the Borrower.
(lxiv) paying its own operating expenses and other liabilities out The Borrower will not engage in any transaction with any of its own funds;Affiliates involving any intent to hinder, delay or defraud any Person.
(mxv) observing The Borrower will observe all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;.
(nxvi) maintaining adequate capital for The Borrower will take, or refrain from taking, as the normal obligations reasonably foreseeable case may be, all other actions that are necessary to be taken or not to be taken in light of its contemplated business operations;
order to (ox) not acquiring obligations or ensure that the securities of any Member or any of such Member’s officers assumptions and Affiliates, except as required under factual recitations set forth in the Customer Agreements or Transaction Documents;
(p) holding itself out Specified Bankruptcy Opinion Provisions remain true and correct with respect to the public as a legal entity separate Borrower and distinct from any other Person, including the Members;
(qy) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of those procedures described in such provisions which are applicable to the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesBorrower.
Appears in 1 contract
Samples: Receivables Loan Agreement (TRW Automotive Holdings Corp)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. At all times, including taking the following actions:
(a) maintaining in full effect its existence, rights all funds and franchises as a limited liability company under the laws assets of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or Company shall be necessary to protect separately identifiable from those of the validity and enforceability of this Agreement and each Member or any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Person.
(b) maintaining The Company shall maintain its own deposit accountsproperty and assets in such a way that it is not difficult or costly to segregate, separate identify and ascertain its property and assets as distinct from those the property and assets of each Member and any of their respective officers and Affiliates;other Person.
(c) conducting all material transactions between The Company shall not guarantee or otherwise hold itself out as being liable for the Company debts of any other entity, and any of shall conduct its Affiliates on an arm’s length basis and on commercially reasonable terms;own business in its own name.
(d) allocating fairly and reasonably the cost of The Company shall not form, or cause to be formed, any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;subsidiaries.
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(f) The Company shall maintain separate records (financial and otherwise), books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(g) not holding itself out as having agreed The Managers shall hold appropriate meetings to pay or Guaranteeauthorize all of the Company's limited liability company actions, or as otherwise being liable forwhich meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the obligations of any Member Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement and any applicable law, and shall keep and maintain records of such Member’s respective officers meetings and Affiliates;compliance.
(h) not making any loans or extending any Indebtedness toThe Company shall at all times ensure that its capitalization is adequate (and never unreasonably small) in light of its business, or acquiring any Indebtedness of, the Members or their respective Affiliates;purpose and expected activities.
(i) not creatingNeither the Member, granting any Special Member nor any Manager, officer or suffering to exist any Liens (other than Permitted Liens) Affiliate of the Company shall guarantee, become liable on property or hold itself out as being liable for the debts of the Company (except provided that the foregoing shall not prohibit the Member from causing to be issued one or more letters of credit or other credit support in favor of (A) Deutsche Bank Trust Company Americas in respect of any losses it or any of its officers, directors, employees, representatives or agents may incur in its capacity as Transition Bond Registrar, Securities Intermediary, authenticating agent or Paying Agent or (B) Wilmington Trust Company in respect of any losses it or any of its officers, directors, employees, representatives or agents may incur in its capacity as Trustee, in each case in connection with the transactions contemplated by the Customer Agreements and the Transaction Basic Documents);. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company's obligations under any Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or officer or any Affiliate thereof.
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to any Servicing Agreement. If and to the extent that any amount is drawn under a letter of credit or other credit support referred to in the parenthetical at the end of the first clause of paragraph (i) of this Section 2.09, such amount will not constitute any amount owing by the Company to the Member or any other Person; rather, to the extent that the Member has provided or made available such a letter of credit or other credit support, and an amount is so drawn, such amount will be treated by the Member and the Company as a capital contribution by the Member to the Company.
(k) The Company shall maintain an arm's-length relationship with the Member and its other Affiliates.
(l) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall allocate fairly and reasonably any overhead for office space shared with the Member, including maintaining meeting minutes any Special Member or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;any Manager.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall use its contemplated own separate taxpayer identification number, stationery, invoices, checks and other business operations;forms.
(o) not acquiring obligations or the securities The Company shall conduct all of its business in its own name and shall correct any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;known misunderstanding regarding its separate identity.
(p) holding The Company shall treat all outstanding Transition Bonds as debt except where a contrary treatment is required by law or by GAAP.
(q) The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;.
(r) The Company shall file its own tax returns, if any, as may be required under applicable law, to the extent (a) not formingpart of a consolidated group filing a consolidated return or returns or (b) not treated as a division for tax purposes of another taxpayer, acquiring or holding and pay any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); andtaxes so required to be paid under applicable law.
(s) not identifying itself The Company shall treat the transfer of the Transition Property from the Member to the Company as a department sale under the Texas Electric Choice Plan. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager or officer on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CenterPoint Energy Transition Bond CO II, LLC)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Administrative Agent may from time to time reasonably request, to maintain the Borrower’s identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(c) to the extent necessary for the operation of its business, (i) fail to maintain an email address not used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower’s own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) either (i) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or (ii) make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than quarterly or otherwise, in certain other irregular cases, unless in each case made in accordance with appropriate limited liability company formalities and consistent with sound business judgment and Section 5.11;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or be a party to any division or dissolve, granting terminate or suffering to exist any Liens (other than Permitted Liens) on property liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case the Company (except as contemplated by the Customer Agreements and the Transaction Documents)Administrative Agent’s prior written consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower’s certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Secured Obligations;
(n) fail to remain Solvent; provided, that this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Credit Party or any general partner, member, principal or Affiliate of any other Credit Party, except with the Administrative Agent’s consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of the Company, any other Credit Party, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of the Company and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of the Company and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Secured Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not formingfile or consent to the filing of any petition, acquiring either voluntary or holding involuntary, to take advantage of any subsidiaries (except as contemplated by applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the Customer Agreements or Transaction Documents); andbenefit of creditors;
(sy) not identifying hold itself out as or be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(z) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(aa) acquire obligations or securities of its partners, members, shareholders or other Affiliates. The failure , as applicable;
(bb) fail to have Organizational Documents that provide that, so long as the Obligations of the Company Borrower shall be outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Borrower, or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Director;
(cc) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with any respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower; and
(dd) fail to observe all requisite organizational formalities under Delaware law. In the event of any inconsistency between the covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.6 or the limited liability of the Membersother covenants set forth in this Agreement, or their respective Affiliatesin the event that any covenant set forth in this Section 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.6 shall control.
Appears in 1 contract
Separateness. Each of Take (or refrain from taking, as the Members case may be) such actions, except as contemplated by the Transaction Documents and the Managing Member acknowledges that the Company is to Completion Bonds, as shall be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionsrequired in order that:
(ai) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and Borrower not commingle any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of money or other assets with any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that money or assets of any other Person;
(gii) the Borrower maintain correct and complete limited liability company records and books of account and minutes of the meetings and the other proceedings of the Borrower and its directors;
(iii) the Borrower have its own principal executive and administrative office through which its business is conducted (which, however, may be within the premises of and leased from any Marvel Company) as reasonably determined by the Borrower based on its operations, and which will be conspicuously identified as the office of the Borrower so that it can be easily located by outsiders;
(iv) the Borrower allocate in a reasonably proportionate manner any overhead for shared office space with an Affiliate, including payment for shared office space and the services performed by any employee of an Affiliate;
(v) the Borrower maintain books and records separate from any other Person, provided that the foregoing limitation shall not holding itself be interpreted as preventing the Borrower from keeping such books and records in the same office, file cabinets or hard drives as the books and records of any other Affiliate of the Borrower, including any member of the Borrower;
(vi) the Borrower conduct its own business and affairs in its own name, act solely in its own name and through its own authorized officers and agents. No Affiliates of the Borrower will be appointed as agents of the Borrower, provided that the foregoing limitation shall not be interpreted as preventing any officer or employee of any Affiliate of the Borrower, including any member of the Borrower, from serving as an officer or providing other services to the Borrower, so long as such services are provided on an “arms-length” basis;
(vii) the Borrower maintain separate financial statements that comply with generally accepted accounting principles, showing its assets and liabilities separate and apart from those of any other Person, and not have its assets listed on any financial statement of any other Person; provided, however, that the Borrower’s assets may be included in a consolidated financial statement of its Affiliate provided that (a) appropriate notation shall be made on such consolidated financial statements to indicate 62 the separateness of the Borrower from such Affiliate and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other Person and (b) such assets shall also be listed on the Borrower’s own separate balance sheet;
(viii) the Borrower pay its own liabilities only out of its own funds and not pay the liabilities of any other Person out of its funds other than for value, providing that the foregoing limitation shall not be interpreted as having agreed to pay or Guaranteepreventing the Borrower from entering into cost-sharing arrangements with (a) Affiliates of the Borrower, including any member of the Borrower, which allocate such costs in a reasonably proportionate manner, or (b) with respect to income taxes, in a manner that is consistent with the Borrower’s status as otherwise a “single-member entity” as defined in Treasury Regulation §301-7701-3(b)(1)(ii);
(ix) other than capital contributions and distributions, the Borrower not enter into any transaction with any of its Affiliates, including any member of the Borrower, except on commercially reasonable terms similar to those of an “arm’s length” transaction other than as contemplated by the Transaction Documents;
(x) the Borrower causes its board of directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and observe all other Delaware limited liability company formalities required under the Delaware Limited Liability Company Act;
(xi) the Borrower not guarantee or become obligated for the debts of any other Person, including any Affiliate, or hold out its credit or assets as being liable for, available to satisfy the obligations of others and not allow any Member Affiliate to guarantee or become obligated for the debts of the Borrower, other than as contemplated by the Transaction Documents (which may include obligations incurred by the Borrower in the furtherance of the production and distribution of Motion Pictures), providing that the foregoing limitation shall not be interpreted as preventing the Borrower from entering into cost-sharing arrangements with (a) Affiliates of the Borrower, including any member of the Borrower, which allocate such Membercosts in a reasonably proportionate manner, or (b) with respect to income taxes, in a manner that is consistent with the Borrower’s respective officers and Affiliatesstatus as a “single-member entity” as defined in Treasury Regulation §301-7701-3(b)(1)(ii);
(hxii) not making the Borrower use stationery, invoices, checks and telephone numbers through which all business correspondence and communications are conducted separate from that of any loans or extending any Indebtedness to, or acquiring any Indebtedness of, other Person as reasonably determined by the Members or their respective AffiliatesBorrower;
(ixiii) the Borrower not creating, granting pledge its assets for the benefit of any Person or suffering to exist any Liens (other than Permitted Liens) on property of the Company (entity except as contemplated by the Customer Agreements and the Transaction Documents)Documents to which it is a party;
(jxiv) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining Borrower at all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding times hold itself out to the public as a legal entity separate from any member of the Borrower and distinct from any other Person, including the Members;
(qxv) correcting the Borrower not engage, directly or indirectly, in any business or purposes other than the actions contemplated by the Transaction Documents (which shall include those activities taken in furtherance of the production and distribution of Motion Pictures) to which it is a party;
(xvi) the Borrower not engage in any merger, consolidation or combination transaction with any Person;
(xvii) the Borrower maintain its bank accounts in its own name except as contemplated by the Transaction Documents;
(xviii) in the event that the Borrower is included within a consolidated tax return of its parent or any other Affiliate, the existence of the Borrower and the ownership of the assets of the Borrower shall be disclosed in a footnote or otherwise noted therein;
(xix) the Borrower not acquire the obligations or securities of any Affiliate;
(xx) the Borrower maintain adequate capital in light of its contemplated business purpose, transaction and liabilities in its reasonable judgment; provided, however, the foregoing shall not require the members of the Borrower or any of its Affiliates to take any action to assure such maintenance, whether by providing capital or facilitating the obtaining of capital;
(xxi) the Borrower correct any known misunderstanding regarding its separate identityidentity and not identify itself as a division of any other Person;
(rxxii) the Borrower cause its managers, members, agents and other representatives to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in accordance with the Constitutive Documents of the Borrower;
(xxiii) the Borrower declare dividends only with approval by a majority of its board of directors, including each director who is an Independent Director (as defined in its charter);
(xxiv) the Borrower make decisions with respect to the business and daily operations of the Borrower independently in its reasonable judgment, and not, in its reasonable judgment, allow such decisions to be dictated by any Affiliate of the Borrower;
(xxv) the Borrower not formingidentify itself as being a division of any other Person and not permit any Person to identify the Borrower as being a division of such Person, acquiring or holding any subsidiaries (except provided that the foregoing limitation shall not limit the Borrower’s ability to identify itself as contemplated by the Customer Agreements or Transaction Documents)a limited liability company and disregarded entity for tax purposes; and
(sxxvi) the Borrower not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure be bound by the business decisions of the Company to comply with any members of the foregoing provisions Borrower or its board of this Section 8.6 shall not affect directors unless such business decisions have been approved in accordance with the status governance procedures set forth in the Constitutive Documents of the Company as a separate legal Person Borrower.
(1) cause production to begin with respect to the initial Motion Picture produced in accordance with the Master Agreement on or before June 30, 2008, and (2) use its best efforts to cause the limited liability of Release Date with respect to the Membersinitial Motion Picture produced in accordance with the Master Agreement to occur on or before December 31, or their respective Affiliates2008.
Appears in 1 contract
Samples: Credit and Security Agreement (Marvel Enterprises Inc)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;.
(b) maintaining The Company shall not guarantee or otherwise hold itself out as being liable for the debts of any other entity, and shall conduct its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;business in its own name.
(c) conducting all material transactions between the The Company and shall not form, or cause to be formed, any of its Affiliates on an arm’s length basis and on commercially reasonable terms;subsidiaries.
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(e) The Company shall maintain separate records, books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(f) The Managers shall hold appropriate meetings to authorize all of its limited liability company actions, which meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement.
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations The Company shall at all times ensure that its capitalization is adequate in light of any Member its business and any of such Member’s respective officers and Affiliates;purpose.
(h) Neither the Member, any Special Member nor any Manager shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not making guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except for the Company's obligations under the Basic Documents), shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or extending advances to any Indebtedness toPerson, and shall not acquire obligations or acquiring securities of the Member, any Indebtedness ofSpecial Member, the Members any Manager or their respective Affiliates;any Affiliate thereof.
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the The Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement.
(j) The Company shall maintain an arm's-length relationship with its Affiliates.
(k) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(l) The Company shall allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall use its own separate stationery, including maintaining meeting minutes or record meeting invoices, checks and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;other business forms.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall correct any known misunderstanding regarding its contemplated business operations;separate identity.
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;.
(qp) correcting any known misunderstanding regarding The Company shall file its separate identity;
own tax returns, if any, as may be required under applicable law, to the extent (ra) not forming, acquiring part of a consolidated group filing a consolidated return or holding any subsidiaries returns or (except as contemplated by the Customer Agreements or Transaction Documents); and
(sb) not identifying itself treated as a department division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Reliant Energy Transition Bond Co LLC)
Separateness. Each of the Members and the Managing Member acknowledges that the (a) The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company take all reasonable steps to maintain its existence identity as a separate legal entity from each other Person and distinct from any other Personto make it manifest to third parties that it is a separate legal entity. Without limiting the generality of the foregoing, including taking except with the following actionsprior written approval of the Board acting with Special Approval, and with the prior written approval of the Service Provider as may be required under the DSA, the Company shall:
(ai) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining maintain its own deposit accountsseparate books and records, separate financial statements and bank accounts from those of each Member Nuvve Parent and any of their respective officers and its other Affiliates;
(cii) conducting at all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding times hold itself out to the public as a legal entity separate and distinct from any other Person and not identify itself or hold itself out as a division of any other Person, including the Members;
(qiii) correcting other than as may be permitted by the DSA, conduct its business in its own name and hold all of its assets in its own name;
(iv) hold at least quarterly meetings of the Board and otherwise observe corporate governance formalities as set forth in Article V;
(v) maintain an arm’s-length relationship with Affiliates of Nuvve Parent;
(vi) not hold out its credit as being available to satisfy the obligations of other Persons, including Nuvve Parent and its Affiliates;
(vii) not become or remain liable, directly or contingently, in connection with any Indebtedness or other liability of Nuvve Parent or any of its Subsidiaries, whether by guaranty, indorsement (other than indorsements of negotiable instruments for deposit or collection in the ordinary course of business), agreement to purchase or repurchase, agreement to supply or advance funds or otherwise;
(viii) not grant or permit to exist any lien, encumbrance, claim, security interest, pledge or other right in favor of any Person in the assets of the Company or its Subsidiaries that secures the obligations or is for the benefit of Nuvve Parent and its other Affiliates;
(ix) not make loans or transfer funds to Nuvve Parent or its Affiliates;
(x) file its own tax return and pay on its own behalf any taxes required to be paid by the Company under applicable law;
(xi) not commingle its assets with assets of any other Person;
(xii) pay its own liabilities out of its own funds;
(xiii) use separate stationery, invoices and checks bearing its own name;
(xiv) correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(sxv) not identifying itself as a department acquire any obligations or division securities of any Member Nuvve Parent or any of such Member’s respective officers its Affiliates.
(b) The Members acknowledge and Affiliates. The failure of agree that the Company to comply with is a special purpose, non-guarantor, unrestricted Subsidiary of Nuvve Parent and any Affiliate thereof and shall be bankruptcy remote from Nuvve Parent and any Affiliate of Nuvve Parent that is not the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCompany.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Nuvve Holding Corp.)
Separateness. Each of The SPE Seller shall (i) own no assets, and shall not engage in any business, other than the Members assets and transactions specifically contemplated by this Agreement; (ii) not incur any Indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than (A) with respect to the Asset Documents and the Managing Member acknowledges Retained Interests, (B) commitments to make loans which may become Eligible Assets and (C) as otherwise permitted under this Agreement; (iii) not make any loans or advances to (1) any Affiliate or (2) any third party unless the loans or advances are on an arms length basis in connection with the origination of Assets intended for the Facility; (iv) not acquire obligations or securities of its Affiliates; (iv) pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (v) comply with the provisions of its Authority Documents; (vi) do all things necessary to observe organizational formalities and to preserve its existence, and shall not amend, modify or otherwise change its Authority Documents; (vii) maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates (except that such financial statements may be consolidated to the Company extent consolidation is to be formed and operated required under the GAAP consistently applied or as a special purpose entitymatter of Applicable Law) and file its own tax returns (except to the extent consolidation is required or permitted under Applicable Law); (viii) be, distinct and separate from any Member or its Affiliates. Accordinglyat all times shall hold itself out to the public as, the Managing Member shall cause the Company to maintain its existence a legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect shall correct any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, shall conduct business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and shall not identify itself or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property a division of the Company other; (except as contemplated by the Customer Agreements and the Transaction Documents);
(jix) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining 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;
; (ox) not acquiring obligations engage in or the securities suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (xi) not commingle its funds or other assets with those of any Member Affiliate or any other Person; (xii) maintain its accounts separate from those of such Member’s officers and Affiliates, except as required under the Customer Agreements any Affiliate or Transaction Documents;
any other Person; (pxiii) holding shall not hold itself out to be responsible for the public as a legal entity separate and distinct from debts or obligations of any other Person; (xiv) shall not, including without the Members;
vote of its Independent Director, (qA) correcting file or consent to the filing of any known misunderstanding regarding Insolvency Proceeding with respect to the 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 the Seller, (B) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its separate identity;
Properties, or (rC) not forming, acquiring make any assignment for the benefit of the Seller’s creditors; (xv) shall have at all times at least one (1) Independent Director (or holding any subsidiaries (except such greater number as contemplated required by the Customer Agreements Purchaser or Transaction Documentsthe Rating Agencies); and
(sxvi) not identifying itself as shall maintain an arm’s length relationship with its Affiliates; (xvii) maintain a department or division sufficient number of employees in light of contemplated business operations; (xviii) use separate stationary, invoices and checks; and (xvix) allocate fairly and reasonably any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesoverhead for shared office space.
Appears in 1 contract
Samples: Master Repurchase Agreement (Quadra Realty Trust, Inc.)
Separateness. Each (i) The Seller shall at all times maintain at least one independent Manager who (w) is not currently and has not been during the five years preceding the date of this Agreement an officer, director, manager or employee of, or a major vendor or supplier of services to, an Affiliate of the Members Seller or any Other Medco Company, (x) is not a current or former officer or employee of the Seller, (y) is not a stockholder or equity owner of any Other Medco Company or any of their respective Affiliates (except through a mutual fund or similar pooled investment vehicle) and (z) who (A) has prior experience as an independent director for a corporation and/or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers, as the case may be, thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, or has otherwise been engaged for at least three years in the business of providing, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Seller shall not direct or participate in the management of any other Person's operations.
(iii) The Seller shall conduct its business from an office separate from that of the Other Medco Companies (but which may be located in the same facility as one or more of the Other Medco Companies). The Seller shall have stationery and other business forms separate from that of the Other Medco Companies.
(iv) The Seller shall at all times be adequately capitalized in light of its contemplated business.
(v) The Seller shall at all times provide for its own operating expenses and liabilities from its own funds except that (A) common overhead expenses may be shared by the Seller and the Managing Member acknowledges Other Medco Companies on a basis reasonably related to use and (B) the Servicer may pay operating expenses on the Seller's behalf so long as the Servicer determines in its good faith business judgment that it will be reimbursed therefor out of the Company is Seller's own funds on or before the next succeeding Settlement Date.
(vi) The Seller shall maintain its assets and transactions separately from those of any other Person, and the Seller shall reflect such assets and transactions in financial statements separate and distinct from those of the Other Medco Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Person. The Seller shall hold itself out to be formed and operated the public under the Seller's own name as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence legal entity separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or . The Seller shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding hold itself out as having agreed to pay or Guaranteepay, or as otherwise being liable liable, primarily or secondarily, for, the any obligations of any Member other Person.
(vii) The Seller shall not maintain any joint account with any Other Medco Company or become liable as a guarantor or otherwise with respect to any Indebtedness or contractual obligation of any Other Medco Company. The membership interests of the Seller and any Indebtedness (whether or not represented by promissory notes) of or issued by the Seller to the Originator or any of its Subsidiaries may not be pledged to secure Indebtedness of the Originator or any Other Medco Company.
(viii) The Seller shall not make any payment or distribution of assets with respect to any obligation of any other Person or grant an Adverse Claim on any of its assets to secure any obligation of any Other Person.
(ix) The Seller shall not make loans, advances or otherwise extend credit to any other Person except as expressly contemplated by the Originator Purchase Agreement.
(x) The Seller shall hold regular duly noticed meetings (or authorize actions by unanimous written consent) of its Board of Managers, make and retain minutes of such Member’s respective officers meetings and Affiliates;otherwise observe all limited liability company formalities.
(hxi) not making any loans The Seller shall have bills of sale (or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(isimilar instruments of assignment) not creating, granting or suffering with respect to exist any Liens all assets (other than Permitted LiensReceivables or interests therein acquired under the Originator Purchase Agreement) on property purchased from any of the Company Other Medco Companies, in each case to the extent such bills of sale would be customarily prepared in transactions with non-Affiliates.
(xii) The Seller shall not engage in any transaction with any other Person, except as contemplated by the Customer Agreements this Agreement and the Transaction Documents);Originator Purchase Agreement.
(jxiii) not acquiring any asset other than any asset conveyed to the Company pursuant to The Seller shall prepare its financial statements separately from those of any of the Customer Agreements or Transaction Documents or purchased by the Other Medco Companies and shall insure that any consolidated financial statements of any Other Medco Company in accordance that are filed with the Customer Agreements Securities and Exchange Commission or Transaction Documents;any other Official Body or are furnished to any creditors of any Other Medco Company have notes clearly stating that (A) the Seller is the owner of the Pool Receivables and is a separate entity and (B) the Seller's assets will be available first and foremost to satisfy the claims of the creditors of the Seller.
(kxiv) maintaining The Seller shall take, or refrain from taking, as the case may be, all of 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 with respect to the Seller and (y) comply with those procedures described in such provisions which are applicable to the Seller.
(xv) The Seller will not commingle its assets in its own name and not commingling its funds or assets with those of any other Person;Person or entity. The Seller will provide separately for its expenses and liabilities from its own funds (except as provided in paragraph (v) above), and will fairly and reasonably allocate any expenses associated with services provided by common employees, office space, or other overhead and administrative expenses with any affiliate.
(lxvi) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of The Seller will not identify itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities as a division of any Member other person or any of such Member’s officers entity, and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding will hold itself out to creditors and the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting entity and will correct any known misunderstanding regarding its separate identity;.
(rxvii) not forming, acquiring or holding any subsidiaries The Seller will transact all business with Affiliates on an arms' length basis and pursuant to commercially reasonable agreements.
(except as xviii) After entering into the transactions contemplated by this Agreement and the Customer Agreements or Transaction Documents); and
(s) Originator Purchase Agreement, the Seller will not identifying itself as a department or division of any Member or transfer any of such Member’s respective officers its assets to the Originator other than (i) transfers for fair or reasonably equivalent consideration and Affiliateswithout the intent to hinder, delay or defraud the Seller's creditors, and (ii) distributions that are not fraudulent or in violation of applicable entity law. The failure of If, after entering into the Company to comply with transactions contemplated by this Agreement and the Originator Purchase Agreement, the Originator transfers any of its assets to the foregoing provisions of this Section 8.6 shall not affect Seller, the status of Seller will properly account for such transfers as capital contributions or sales made in accordance with the Company as a separate legal Person or the Originator Purchase Agreement and its limited liability of the Memberscompany agreement, or their respective Affiliatesas applicable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Medco Health Solutions Inc)
Separateness. Each of Borrower and Master Servicer acknowledges that each of the Members Administrative Agent and the Managing Member acknowledges Lenders is entering into the transactions contemplated by the Transaction Documents in reliance upon Xxxxxxxx’s identity as a legal entity that is separate from each of the Originators and their respective Related Parties. Therefore, from and after the date of execution and delivery of this Agreement, Borrower shall take all reasonable steps, including, without limitation, all steps that the Company is Administrative Agent or any Lender may from time to be formed and operated time reasonably request, to maintain Borrower’s identity as a special purpose entity, distinct separate legal entity and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate make it manifest to third parties that Borrower is an entity with assets and liabilities distinct from any those of its Related Parties and not just a division thereof. Without limiting the generality of the foregoing and in addition to the other Personcovenants set forth herein, including taking the following actionsexcept as herein specifically otherwise provided, Borrower will:
(ai) maintaining Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement Borrower’s Organizational Documents and each other instrument or agreement necessary or appropriate to properly administer this Agreement its Organizational Documents and permit and effectuate the transactions contemplated hereby and thereby;
(bii) maintaining Maintain its own deposit separate books and records and its own bank accounts, separate from those of each Member and any of their respective officers and Affiliates;
(ciii) conducting all material transactions between the Company and any of Maintain an arms’ length relationship with its Affiliates on an arm’s length basis and on commercially reasonable termsits sole member;
(div) allocating fairly and reasonably the cost Have a board of directors which is not identical to that of its member or any shared overhead expensesother Related Party, including office spaceincluding, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesat all times, at least one Independent Director;
(ev) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying Pay its own operating expenses and other liabilities out of its own funds, and allocate fairly and reasonably, to the extent practical on the basis of actual use or the value of services rendered, any overhead for shared office space or other overhead expenses;
(mvi) observing Maintain separate financial statements (it being understood that Borrower will be consolidated for financial reporting purposes with TPX);
(vii) File its own tax returns, if any, as may be required under applicable law, to the extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(viii) Conduct its affairs in its own name separately from those of any other Person and strictly complying with all organizational formalities to maintain its separate existence;
(ix) Act solely in its own limited liability company name and through its own authorized managers, directors, members, officers and agents, except as explicitly permitted by Xxxxxxxx’s Organizational Documents and the Transaction Documents;
(x) At all times use its own stationery, separate from those of any other Person;
(xi) Not hold out its credit or assets as being available to satisfy the obligations of others;
(xii) Except as contemplated by Xxxxxxxx’s Organizational Documents and the Transaction Documents, maintain all of its assets in its own name and not commingle its assets with those of any other Person;
(xiii) Observe all Delaware limited liability company formalities, including maintaining meeting minutes or record meeting records of meetings and acting on behalf of itself only pursuant to due authorization, required hereby and by the its Certificate of Formation;
(nxiv) maintaining Maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operationsoperations and in any event, Borrower shall maintain its equity in an amount not less than the Required Capital Amount;
(oxv) not acquiring obligations or the Not acquire any securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsits member;
(pxvi) holding Hold itself out to the public and all other Persons as a legal entity separate and distinct from its member and any other Person, including the Members;
(q) correcting Person and correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(sxvii) not identifying itself as a department or division Cause the managers, authorized persons, agents and other representatives of any Member or any of such Member’s respective officers Borrower to act at all times with respect to Xxxxxxxx consistently and Affiliates. The failure in furtherance of the Company foregoing and in the best interests of Borrower. Failure of Borrower, its sole member, its manager or its board of directors, to comply with any of the foregoing provisions of covenants or any other covenants contained in this Section 8.6 Agreement, shall not affect the status of the Company Borrower as a separate legal Person entity or the limited liability of the Members, its member or their respective Affiliatesmanagers.
Appears in 1 contract
Samples: Credit and Security Agreement (Tempur Sealy International, Inc.)
Separateness. Each of Borrower and Master Servicer acknowledges that each of the Members Administrative Agent and the Managing Member acknowledges Lenders is entering into the transactions contemplated by the Transaction Documents in reliance upon Borrower’s identity as a legal entity that is separate from each of the Originators and their respective Related Parties. Therefore, from and after the date of execution and delivery of this Agreement, Borrower shall take all reasonable steps, including, without limitation, all steps that the Company is Administrative Agent or any Lender may from time to be formed and operated time reasonably request, to maintain Borrower’s identity as a special purpose entity, distinct separate legal entity and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate make it manifest to third parties that Borrower is an entity with assets and liabilities distinct from any those of its Related Parties and not just a division thereof. Without limiting the generality of the foregoing and in addition to the other Personcovenants set forth herein, including taking the following actionsexcept as herein specifically otherwise provided, Borrower will:
(ai) maintaining Maintain in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement Borrower’s Organizational Documents and each other instrument or agreement necessary or appropriate to properly administer this Agreement its Organizational Documents and permit and effectuate the transactions contemplated hereby and thereby;
(bii) maintaining Maintain its own deposit separate books and records and its own bank accounts, separate from those of each Member and any of their respective officers and Affiliates;
(ciii) conducting all material transactions between the Company and any of Maintain an arms’ length relationship with its Affiliates on an arm’s length basis and on commercially reasonable termsits sole member;
(div) allocating fairly and reasonably the cost Have a board of directors which is not identical to that of its member or any shared overhead expensesother Related Party, including office spaceincluding, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesat all times, at least one Independent Director;
(ev) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying Pay its own operating expenses and other liabilities out of its own funds, and allocate fairly and reasonably, to the extent practical on the basis of actual use or the value of services rendered, any overhead for shared office space or other overhead expenses;
(mvi) observing Maintain separate financial statements (it being understood that Borrower will be consolidated for financial reporting purposes with TPX);
(vii) File its own tax returns, if any, as may be required under applicable law, to the extent (A) not part of a consolidated group filing a consolidated return or returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(viii) Conduct its affairs in its own name separately from those of any other Person and strictly complying with all organizational formalities to maintain its separate existence;
(ix) Act solely in its own limited liability company name and through its own authorized managers, directors, members, officers and agents, except as explicitly permitted by Borrower’s Organizational Documents and the Transaction Documents;
(x) At all times use its own stationery, separate from those of any other Person;
(xi) Not hold out its credit or assets as being available to satisfy the obligations of others;
(xii) Except as contemplated by Borrower’s Organizational Documents and the Transaction Documents, maintain all of its assets in its own name and not commingle its assets with those of any other Person;
(xiii) Observe all Delaware limited liability company formalities, including maintaining meeting minutes or record meeting records of meetings and acting on behalf of itself only pursuant to due authorization, required hereby and by the its Certificate of Formation;
(nxiv) maintaining Maintain adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operationsoperations and in any event, Borrower shall maintain its equity in an amount not less than the Required Capital Amount;
(oxv) not acquiring obligations or the Not acquire any securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documentsits member;
(pxvi) holding Hold itself out to the public and all other Persons as a legal entity separate and distinct from its member and any other Person, including the Members;
(q) correcting Person and correct any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(sxvii) not identifying itself as a department or division Cause the managers, authorized persons, agents and other representatives of any Member or any of such Member’s respective officers Borrower to act at all times with respect to Borrower consistently and Affiliates. The failure in furtherance of the Company foregoing and in the best interests of Borrower. Failure of Borrower, its sole member, its manager or its board of directors, to comply with any of the foregoing provisions of covenants or any other covenants contained in this Section 8.6 Agreement, shall not affect the status of the Company Borrower as a separate legal Person entity or the limited liability of the Members, its member or their respective Affiliatesmanagers.
Appears in 1 contract
Samples: Credit and Security Agreement (Tempur Sealy International, Inc.)
Separateness. Each of the Members The Company and the Managing Member acknowledges that the Company is to be formed and operated its Subsidiaries, as a special purpose entityconsolidated group, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actionseach at all times:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be observe all applicable entity procedures necessary to protect the validity maintain its separate existence and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsformalities, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;including:
(i) not creating, granting maintain minutes or suffering to exist any Liens (other than Permitted Liens) on property records of meetings of the members and/or managers of the Company (except as contemplated by the Customer Agreements and the Transaction Documents)its Subsidiaries;
(jii) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting act on behalf of itself only pursuant to due authorizationauthorization of the members and/or managers, required hereby including, when applicable, any independent managers or members; and
(iii) conduct its own business in its own name and by the Certificate of Formationthrough authorized agents pursuant to its Constitutional Documents;
(nb) maintaining adequate capital allocate fairly and reasonably any shared expenses, including overhead for shared office space or common employees (if any);
(c) use separate stationery, invoices and checks bearing its own name;
(d) prepare and maintain its own full and complete books, accounting records (including books of account and payroll, if any) and other documents and records, in each case which are separate and apart from the books, accounting records and other documents and records of the Sponsor or any Affiliate thereof;
(e) maintain separate bank accounts in its own name or otherwise pursuant to the Finance Documents and make all investments by or on behalf of the Company and its Subsidiaries solely in its name except as otherwise provided by the Finance Documents;
(f) separate its property and not allow funds or other assets to be commingled with the funds and other assets of, held by, or registered in the name of the Sponsor or any Affiliate thereof, and maintain its assets in such a manner that it is not costly or difficult to identify or ascertain such assets, all except to the extent otherwise provided by the Finance Documents;
(g) not hold itself out as being liable for the normal debts of the Sponsor or any Affiliate thereof and not guarantee the debts of the Sponsor or any Affiliate thereof except as permitted by the Finance Documents;
(h) not acquire or assume obligations reasonably foreseeable or securities of, or make loans or advances to, any of its Affiliates except as required under the Finance Documents;
(i) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other Person, and not have its assets listed on the balance sheet of any other Person; provided that such Obligor may also report its financial statements on a consolidated or combined basis with one or more of its Affiliates in accordance with GAAP so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of the Company and its Subsidiaries from such Affiliate(s) and to disclose the separate nature of the Company and its Subsidiaries indebtedness;
(j) prepare and file its own tax returns separate from those of any Person except to the extent that the Company and its Subsidiaries is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under applicable law;
(k) pay its own liabilities and expenses out of its own assets (except as provided under the Finance Documents);
(l) pay the salaries of its own employees, if any, and maintain a sufficient number of employees in light of its contemplated business operationsoperations (either directly or through contractual arrangements to provide such services that such employees would provide) and not permit its employees, if any, to participate in or receive payroll benefits or pension plans of or from any of its Affiliates;
(m) maintain adequate capitalization in light of its contemplated business and obligations;
(n) hold itself out to third parties as a legal entity, separate and distinct and independent from any other entity, conduct its own business solely under its name and correct any known misunderstanding as to the separateness of the Obligors from any other Person;
(o) not acquiring obligations procure that the Company shall have an independent director or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction manager appointed in accordance with its Constitutional Documents;; and
(p) holding itself out to the public as a legal entity separate have and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to maintain Constitutional Documents which comply with any of the foregoing provisions requirements of this Section 8.6 4.4; provided that no limitation in this Section shall not affect the status of apply to the Company and its Subsidiaries as a separate legal Person or the limited liability of the Members, or their respective Affiliatesamong one another.
Appears in 1 contract
Samples: Indenture (Cheniere Energy Inc)
Separateness. Each As of the Members date hereof, the Seller (a) owns no assets, and does not engage in any business, other than the Managing Member acknowledges that assets and transactions specifically contemplated by this Repurchase Agreement; (b) has not incurred any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than pursuant hereto; (c) has not made any loans or advances to any third party other than loans to Guarantor, and has not acquired obligations or securities of its Affiliates; (d) has paid its debts and liabilities (including, as applicable, shared personnel and overhead expenses) only from its own assets; (e) complies with the Company is provisions of its organizational documents; (f) does all things necessary to observe organizational formalities and to preserve its existence, and has not amended, modified or otherwise changed its organizational documents, or suffered same to be formed amended, modified or otherwise changed; (g) maintains all of its books, records, financial statements and operated as a special purpose entity, distinct and bank accounts separate from any Member or those of its Affiliates. Accordingly; (h) is, and at all times holds itself out to the Managing Member shall cause the Company to maintain its existence public as, a legal entity separate and distinct from any other Personentity (including any Affiliate), including taking the following actions:
(a) maintaining in full effect corrects any known misunderstanding regarding its existence, rights and franchises status as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do separate entity, conducts business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accountsname, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and does not identify itself or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably as a division or part of the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, the obligations of any Member and any of such Member’s respective officers and Affiliates;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
other; (i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining maintains 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) does not engage in or suffer any change of ownership, dissolution, winding up, liquidation, consolidation or merger in whole or in part; (k) does not commingle its funds or other assets with those of any Affiliate or any other Person; (1) maintains 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) does not hold itself out to be responsible for the debts or obligations of any other Person; (n) has not (i) filed or consented to the filing of any bankruptcy, insolvency or reorganization case or proceeding with respect to the Seller; instituted any proceedings under any applicable insolvency law or otherwise sought any relief under any laws relating to the relief from debts or the protection of debtors generally with respect to the Seller; (ii) sought or consented to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Seller or a substantial portion of its properties; or (iii) made any assignment for the benefit of the Seller’s creditors; and (o) not acquiring obligations or has at least one (1) Independent Director for purposes of voting on the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(pmatters described in Section 13.9(n) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliatesonly.
Appears in 1 contract
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed and operated Lenders are entering into this Agreement in reliance upon the Borrower’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, from and after the date of this Agreement, the Borrower shall take all reasonable steps, including taking without limitation, all steps that the following actions:Administrative Agent may from time to time reasonably request, to maintain the Borrower’s identity as a separate legal entity and to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower agrees that it has not and shall not (except as otherwise provided in the Credit Documents):
(a) maintaining in full effect fail to maintain its existence, rights and franchises as a limited liability company under existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the laws terms of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and agreement of the Borrower, fail to not that of to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) fail to file its own tax returns, if any, as may be required under applicable Law, to the extent it is (i) not part of a consolidated group filing a consolidated return or returns, or (ii) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable Law;
(i) maintain an email address used by any Affiliate thereof, or (ii) share a telephone number or facsimile number with any such Affiliate;
(d) fail to pay its own liabilities only out of its own funds;
(e) fail to compensate (either directly or through reimbursement of its allocable share of any shared expenses) all employees, consultants and agents, and Affiliates of the Borrower, to the extent applicable, for services provided to the Borrower by such employees, consultants and agents or such Affiliates, in each case, from the Borrower’s own funds; provided, however, that the foregoing shall not require the member of the Borrower to make any additional capital contributions to the Borrower;
(f) make or declare any dividends or other distributions of cash or property to the holders of its equity securities or make redemptions or repurchases of its equity securities, in either case, on a periodic basis any more frequently than monthly or otherwise, in certain other irregular cases, in accordance with appropriate corporate formalities and consistent with sound business judgment;
(g) not holding itself out as having agreed to pay engage, either directly or Guaranteeindirectly, in any business or as otherwise being liable foractivity other than the acquisition, ownership, financing and disposition of the obligations of any Member Receivables in accordance with the Credit Documents and any of such Member’s respective officers and Affiliatesactivities incidental thereto;
(h) not making acquire or own any loans or extending any Indebtedness to, or acquiring any Indebtedness of, material asset other than the Members or their respective AffiliatesCollateral and proceeds thereof;
(i) not creatingmerge into or consolidate with any Person or entity or dissolve, granting terminate or suffering liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case, to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated extent permitted by Law, the Customer Agreements and the Transaction Documents)Administrative Agent’s consent;
(j) not acquiring any asset other than any asset conveyed fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the Company pursuant to any laws of the Customer Agreements jurisdiction of its formation, or Transaction Documents without the prior written consent of the Administrative Agent, amend, modify, change, repeal, terminate or purchased by the Company in accordance fail to comply with the Customer Agreements provisions of the Borrower’s certificate of formation, or Transaction Documentsits limited liability company agreement, as the case may be;
(k) maintaining all own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent;
(l) commingle its assets with the assets of any of its general partners, members, Affiliates, principals or any other Person or entity;
(m) incur any Indebtedness except the Secured Obligations;
(n) fail to remain Solvent;
(o) fail to maintain its records, books of account and bank accounts, separate and apart from those of the general partners, members, principals and Affiliates of the Borrower or the Affiliates of a general partner or member of the Borrower or any other Person;
(p) except for the Credit Documents, and as otherwise expressly permitted by the Credit Documents, enter into any contract or agreement with any other Transaction Party or any general partner, member, principal or Affiliate of any other Transaction Party, except with the Administrative Agent’s consent and upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any general partner, member, principal or Affiliate of Commnet Wireless, any other Transaction Party, or any general partner, member, principal or Affiliate thereof or fail to maintain separate financial statements from those of its general partners, members, principles and Affiliates; provided, however, that the Borrower’s financial position, assets, liabilities, net worth and operating results may be included in the consolidated financial statements of Commnet Wireless and its Affiliates; provided, further, that such consolidated financial statements disclose that the Borrower is a separate legal entity and that its assets are not generally available to satisfy the claims of creditors of Commnet Wireless and its Affiliates;
(q) seek the dissolution or winding up, in whole or in part, of the Borrower or take any action that would cause the Borrower to become insolvent;
(r) fail to take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower;
(s) maintain its assets in such a manner that it will be costly or difficult to segregate, ascertain or identify its own name and not commingling its individual assets with from those of any other Person;
(lt) paying except as provided in the Credit Documents, 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 own operating expenses and assets for the benefit of any other liabilities Person or hold out its credit as being available to satisfy the obligations of its own fundsany other Person;
(mu) observing all limited liability company formalitiesexcept as provided in the Credit Documents, make any loans or advances to any third party, including maintaining meeting minutes any general partner, member, principal or record meeting and acting on behalf Affiliate of itself only pursuant to due authorizationthe Borrower, required hereby and by the Certificate of Formationor any general partner, member, principal or Affiliate thereof;
(nv) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding fail either to hold itself out to the public as a legal entity separate and distinct from any other Personentity or Person or to conduct its business solely in its own name in order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that the Borrower is responsible for the debts of any third party (including any general partner, member, principal or Affiliate of the MembersBorrower, or any general partner, member, principal or Affiliate thereof);
(qw) correcting any known misunderstanding regarding fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its separate identitysize and character and in light of its contemplated business operations to the extent there exists sufficient cash flow from Collections to do so after payment of the Secured Obligations, and this provision shall not require the member of the Borrower to make additional capital contributions to the Borrower;
(rx) not forming, acquiring hold itself out as or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself be considered as a department or division (other than for tax purposes) of any Member general partner, principal, member or Affiliate of the Borrower or any other Person or entity;
(y) fail to allocate fairly and reasonably shared expenses (including, without limitation, shared office space and services performed by an employee of an Affiliate) among the Persons sharing such Member’s respective officers expenses and to use separate stationery, invoices and checks;
(z) acquire obligations or securities of its partners, members, shareholders or other Affiliates. The failure , as applicable;
(aa) violate or cause to be violated the assumptions made with respect to the Borrower in any opinion letter pertaining to substantive consolidation delivered to the Lenders in connection with the Credit Documents;
(bb) fail to have Organizational Documents that provide that, so long as the Secured Obligations are outstanding, the Borrower shall not (i) seek the dissolution or winding up in whole, or in part, of the Company Borrower, or (ii) file or consent to comply the filing of any petition, either voluntary or involuntary, or commence a case under any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the consent of the Independent Manager; and
(cc) fail to cause its members, managers, directors, officers, agents and other representatives to act at all times with any respect to the Borrower consistently and in furtherance of the foregoing provisions and in the best interests of the Borrower;
(dd) fail to observe all requisite organizational formalities under Delaware law. In the event of any inconsistency between the covenants set forth in this Section 8.6 shall not affect the status of the Company as a separate legal Person 5.6 or the limited liability of the Membersother covenants set forth in this Agreement, or their respective Affiliatesin the event that any covenant set forth in this Section 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the covenants set forth in this Section 5.6 shall control.
Appears in 1 contract
Separateness. Each (i) The Seller shall at all times maintain at least one independent Manager who (w) is not currently and has not been during the five years preceding the date of this Agreement an officer, director, manager or employee of, or a major vendor or supplier of services to, an Affiliate of the Members Seller or any Other Medco Company, (x) is not a current or former officer or employee of the Seller, (y) is not a stockholder or equity owner of any Other Medco Company or any of their respective Affiliates (except through a mutual fund or similar pooled investment vehicle) and (z) who (A) has prior experience as an independent director for a corporation and/or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers, as the case may be, thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (B) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, or has otherwise been engaged for at least three years in the business of providing, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.
(ii) The Seller shall not direct or participate in the management of any other Person’s operations.
(iii) The Seller shall conduct its business from an office separate from that of the Other Medco Companies (but which may be located in the same facility as one or more of the Other Medco Companies). The Seller shall have stationery and other business forms separate from that of the Other Medco Companies.
(iv) The Seller shall at all times be adequately capitalized in light of its contemplated business.
(v) The Seller shall at all times provide for its own operating expenses and liabilities from its own funds except that (A) common overhead expenses may be shared by the Seller and the Managing Member acknowledges Other Medco Companies on a basis reasonably related to use and (B) the Servicer may pay operating expenses on the Seller’s behalf so long as the Servicer determines in its good faith business judgment that it will be reimbursed therefor out of the Company is Seller’s own funds on or before the next succeeding Settlement Date.
(vi) The Seller shall maintain its assets and transactions separately from those of any other Person, and the Seller shall reflect such assets and transactions in financial statements separate and distinct from those of the Other Medco Companies and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of any other Person. The Seller shall hold itself out to be formed and operated the public under the Seller’s own name as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence legal entity separate and distinct from any other Person, including taking the following actions:
(a) maintaining in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or . The Seller shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting solely in its own limited liability company name and not that of any other Person;
(g) not holding hold itself out as having agreed to pay or Guaranteepay, or as otherwise being liable liable, primarily or secondarily, for, the any obligations of any Member other Person.
(vii) The Seller shall not maintain any joint account with any Other Medco Company or become liable as a guarantor or otherwise with respect to any Indebtedness or contractual obligation of any Other Medco Company. The membership interests of the Seller and any Indebtedness (whether or not represented by promissory notes) of or issued by the Seller to the Originator or any of its Subsidiaries may not be pledged to secure Indebtedness of the Originator or any Other Medco Company.
(viii) The Seller shall not make any payment or distribution of assets with respect to any obligation of any other Person or grant an Adverse Claim on any of its assets to secure any obligation of any Other Person.
(ix) The Seller shall not make loans, advances or otherwise extend credit to any other Person except as expressly contemplated by the Originator Purchase Agreement.
(x) The Seller shall hold regular duly noticed meetings (or authorize actions by unanimous written consent) of its Board of Managers, make and retain minutes of such Member’s respective officers meetings and Affiliates;otherwise observe all limited liability company formalities.
(hxi) not making any loans The Seller shall have bills of sale (or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or their respective Affiliates;
(isimilar instruments of assignment) not creating, granting or suffering with respect to exist any Liens all assets (other than Permitted LiensReceivables or interests therein acquired under the Originator Purchase Agreement) on property purchased from any of the Company Other Medco Companies, in each case to the extent such bills of sale would be customarily prepared in transactions with non-Affiliates.
(xii) The Seller shall not engage in any transaction with any other Person, except as contemplated by the Customer Agreements this Agreement and the Transaction Documents);Originator Purchase Agreement.
(jxiii) not acquiring any asset other than any asset conveyed to the Company pursuant to The Seller shall prepare its financial statements separately from those of any of the Customer Agreements or Transaction Documents or purchased by the Other Medco Companies and shall insure that any consolidated financial statements of any Other Medco Company in accordance that are filed with the Customer Agreements Securities and Exchange Commission or Transaction Documents;any other Official Body or are furnished to any creditors of any Other Medco Company have notes clearly stating that (A) the Seller is the owner of the Pool Receivables and is a separate entity and (B) the Seller’s assets will be available first and foremost to satisfy the claims of the creditors of the Seller.
(kxiv) maintaining The Seller shall take, or refrain from taking, as the case may be, all of 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 with respect to the Seller and (y) comply with those procedures described in such provisions which are applicable to the Seller.
(xv) The Seller will not commingle its assets in its own name and not commingling its funds or assets with those of any other Person;Person or entity. The Seller will provide separately for its expenses and liabilities from its own funds (except as provided in paragraph (v) above), and will fairly and reasonably allocate any expenses associated with services provided by common employees, office space, or other overhead and administrative expenses with any affiliate.
(lxvi) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of The Seller will not identify itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities as a division of any Member other person or any of such Member’s officers entity, and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding will hold itself out to creditors and the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting entity and will correct any known misunderstanding regarding its separate identity;.
(rxvii) not forming, acquiring or holding any subsidiaries The Seller will transact all business with Affiliates on an arms’ length basis and pursuant to commercially reasonable agreements.
(except as xviii) After entering into the transactions contemplated by this Agreement and the Customer Agreements or Transaction Documents); and
(s) Originator Purchase Agreement, the Seller will not identifying itself as a department or division of any Member or transfer any of such Memberits assets to the Originator other than (i) transfers for fair or reasonably equivalent consideration and without the intent to hinder, delay or defraud the Seller’s respective officers creditors, and Affiliates(ii) distributions that are not fraudulent or in violation of applicable entity law. The failure of If, after entering into the Company to comply with transactions contemplated by this Agreement and the Originator Purchase Agreement, the Originator transfers any of its assets to the foregoing provisions of this Section 8.6 shall not affect Seller, the status of Seller will properly account for such transfers as capital contributions or sales made in accordance with the Company as a separate legal Person or the Originator Purchase Agreement and its limited liability of the Memberscompany agreement, or their respective Affiliatesas applicable.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Medco Health Solutions Inc)
Separateness. Each of the Members and the Managing Member acknowledges that the The Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking undertake the following actionsactivities:
(a) maintaining in full effect its existence, rights prepare and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining maintain its own deposit accountsseparate, separate from those of each Member full and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
(d) allocating fairly and reasonably the cost of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate complete books, ,records and accounts and financial statements;
(fb) acting solely maintain all formalities regarding the separate existence of the Company and act only in its own limited liability company name and not that through authorized agents pursuant to its organizational documents;
(c) maintain separate bank accounts in its own name and all investments made by or on behalf of the Company shall be made solely in the Company's name;
(d) refrain from guaranteeing any debts of any of its Affiliates, except for obligations of the Company to the Company's or its direct or indirect parent companies' consultants, attorneys, employees or other Personservice providers providing services in connection with the activities of the Company;
(e) refrain from acquiring obligations or debt securities of, or making loans or advances to, any of its Affiliates except as permitted under the Loan Documents defined below;
(f) refrain from commingling any of its money or other assets with the money or assets of any of its Affiliates (it being understood that this clause (f) shall not limit the Company's ability to enter into joint ventures, partnerships and similar arrangements with its Affiliates);
(g) not holding itself out as having agreed to pay or Guarantee, or as otherwise being liable for, ensure that all business transactions that are entered into by the obligations of any Member and Company with any of its Affiliates shall be on terms and conditions not more or less favorable to the Company than terms and conditions available at the time to the Company for comparable transactions with unaffiliated persons and shall have been approved in accordance with its organizational documents and shall otherwise comply with the provisions of the loan agreement and related loan documents (the -Loan Documents”) to be entered into by the Company for the development and construction of certain geothermal assets; provided that the Company may enter into joint ventures, partnerships, reimbursement arrangements and similar arrangements with its Affiliates on terms that would not be available in transactions with unaffiliated parties so long as such Member’s respective officers and Affiliatestransactions are permitted under the Loan Documents;
(h) not making any loans or extending any Indebtedness to, or acquiring any Indebtedness of, ensure that the Members or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property capitalization of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining shall be adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operationsand obligations;
(oi) not acquiring obligations manage directly its own liabilities, including paying its own operating expenses. In the event employees of the Company participate in or the securities receive payroll, benefits or pension, insurance, other benefit plans of any Member or from any of such Member’s officers and its Affiliates, except as required the Company, on a current basis, shall reimburse such Affiliate for the Company's pro rata share of the costs thereof to the extent permitted under the Customer Agreements or Transaction Loan Documents;
(pj) holding use separate stationery, invoices and checks; and
(k) hold itself out to the public as a legal separate entity separate and distinct from shall correct any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division entity status of any Member or any of such Member’s respective officers and Affiliates. The failure of which the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective Affiliateshas actual knowledge.
Appears in 1 contract
Samples: Development Loan Agreement (Nevada Geothermal Power Inc)
Separateness. Each (a) Except as expressly permitted by the Basic Documents, the funds and other assets of the Members Company shall not be commingled with those of any other entity, and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and shall maintain its own bank accounts separate from any the Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. At all times, including taking the following actions:
(a) maintaining in full effect its existence, rights all funds and franchises as a limited liability company under the laws assets of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or Company shall be necessary to protect separately identifiable from those of the validity and enforceability of this Agreement and each Member or any other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;Person.
(b) maintaining The Company shall maintain its own deposit accountsproperty and assets in such a way that it is not difficult or costly to segregate, separate identify and ascertain its property and assets as distinct from those the property and assets of each Member and any of their respective officers and Affiliates;other Person.
(c) conducting all material transactions between The Company shall not guarantee or otherwise hold itself out as being liable for the Company debts of any other entity, and any of shall conduct its Affiliates on an arm’s length basis and on commercially reasonable terms;own business in its own name.
(d) allocating fairly and reasonably the cost of The Company shall not form, or cause to be formed, any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;subsidiaries.
(e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
(f) acting The Company shall act solely in its own limited liability company name and through its duly authorized Member, Special Members, Managers, officers or agents in the conduct of its business, and shall conduct its business so as not that to mislead others as to the identity of the entity or assets with which they are concerned.
(f) The Company shall maintain separate records (financial and otherwise), books of account and financial statements and shall not commingle its records and books of account with the records and books of account of any other Person;entity or the Member.
(g) not holding itself out as having agreed The Managers shall hold appropriate meetings to pay or Guaranteeauthorize all of the Company's limited liability company actions, or as otherwise being liable forwhich meetings may be held by telephone conference call, provided, that in lieu of any such meeting and without prior notice, the obligations of any Member Managers may act by written consent in accordance with Section 4.13. The Company shall observe all formalities required by this Agreement and any applicable Law, and shall keep and maintain records of such Member’s respective officers meetings and Affiliates;compliance.
(h) not making any loans or extending any Indebtedness toThe Company shall at all times ensure that its capitalization is adequate (and never unreasonably small) in light of its business, or acquiring any Indebtedness of, the Members or their respective Affiliates;purpose and expected activities.
(i) not creatingNeither the Member, granting any Special Member nor any Manager, officer or suffering to exist any Liens (other than Permitted Liens) on property Affiliate of the Company shall guarantee, become liable on or hold itself out as being liable for the debts of the Company. The Company shall not guarantee or become obligated for the debts of the Member, any Special Member or any Manager, any Affiliate thereof or any other Person, or otherwise hold out its credit as being available to satisfy the obligations of the Member, any Special Member, any Manager or any other Person (except as contemplated by for the Customer Agreements and the Transaction Company's obligations under any Basic Documents);, shall not pledge its assets for the benefit of any entity other than the Trustee, shall not make loans or advances to any Person, and shall not acquire obligations or securities of the Member, any Special Member, any Manager or officer or any Affiliate thereof.
(j) not acquiring any asset other than any asset conveyed to the The Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in shall pay its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to any Servicing Agreement.
(k) The Company shall maintain an arm's-length relationship with the Member and its other Affiliates.
(l) The Company shall allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or other employees shared with the Member, any Special Member or any Manager.
(m) observing all limited liability company formalitiesThe Company shall allocate fairly and reasonably any overhead for office space shared with the Member, including maintaining meeting minutes any Special Member or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;any Manager.
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of The Company shall use its contemplated own separate taxpayer identification number, stationery, invoices, checks and other business operations;forms.
(o) not acquiring obligations or the securities The Company shall conduct all of its business in its own name and shall correct any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;known misunderstanding regarding its separate identity.
(p) holding The Company shall treat all outstanding Transition Bonds as debt except where a contrary treatment is required by law or by GAAP.
(q) The Company shall at all times hold itself out to the public as a legal entity separate from the Member and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;.
(r) The Company shall file its own tax returns, if any, as may be required under applicable law, to the extent (a) not formingpart of a consolidated group filing a consolidated return or returns or (b) not treated as a division for tax purposes of another taxpayer, acquiring or holding and pay any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); andtaxes so required to be paid under applicable law.
(s) not identifying itself The Company shall treat the transfer of the Transition Property from the Member to the Company as a department sale under the Texas Electric Choice Plan. Failure of the Company, or division of the Member, any Special Member or any of such Member’s respective officers and Affiliates. The failure Manager or officer on behalf of the Company Company, to comply with any of the foregoing provisions covenants or any of the covenants contained in this Section 8.6 Agreement shall not affect the status of the Company as a separate legal Person entity or the limited liability of the MembersMember, any Special Member or their respective Affiliatesany Manager.
Appears in 1 contract
Samples: Limited Liability Company Agreement (CenterPoint Energy Transition Bond CO II, LLC)
Separateness. Each of the Members and the Managing Member The Borrower acknowledges that the Company is to be formed Administrative Agent and operated the Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a special purpose entity, distinct and legal entity that is separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person. Therefore, including taking from and after the following actionsClosing Date, the Borrower shall take all reasonable steps to maintain each Relevant Party’s identity as a separate legal entity from each other Person and to make it manifest to third parties that the Relevant Parties are separate legal entities. Without limiting the generality of the foregoing, the Borrower agrees that it shall, and cause each of the Subsidiaries to:
(a) maintaining hold all of its Assets in full effect its existence, rights and franchises as a limited liability company under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and therebyown name;
(b) maintaining not commingle its own deposit accounts, separate from those Assets with the Assets of each Member and any of their respective officers and its members, Affiliates, principals or any other Person;
(c) conducting all material transactions between maintain books, records and agreements as official records and separate from those of the Company members, principals and Affiliates or any of its Affiliates on an arm’s length basis and on commercially reasonable terms;other Person; [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
(d) allocating fairly maintain its bank accounts separate from the members, principals and reasonably the cost Affiliates of any shared overhead expenses, including office space, with the Managing Member and the Class B Members and any of their respective officers and Affiliatesother Person;
(e) conducting its affairs separately from those of each Member not, other than pursuant to the Transaction Documents and its officers and Affiliatesas otherwise expressly permitted by Section 6.16, and maintaining accurate and separate books, records and accounts and financial statementsenter into any Affiliate Transaction;
(f) acting maintain separate Financial Statements from those of its general partners, members, principals, Affiliates or any other Person; provided, however, that the Relevant Parties financial position, Assets, liabilities, net worth and operating results may be included in the consolidated Financial Statements of Sponsor, provided that (i) appropriate notation shall be made on such consolidated Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Sponsor and each Relevant Party maintain separate books and records and to indicate that none of the Relevant Parties’ Assets and credit are not available to satisfy the debts and other obligations of the Sponsor or any other Person and (ii) such Assets and liabilities shall be listed on each Relevant Party’s own separate balance sheet;
(g) promptly correct any known or suspected misunderstanding regarding its separate identity;
(h) not 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;
(i) not guarantee or become obligated, or hold itself as responsible, for the debts of any other Person, except under the Guaranty and Security Agreement or the Guaranty and Pledge Agreement;
(j) not hold out its credit as being available to satisfy the obligations of any other Person, except under any Guaranty and Security Agreement or the Guaranty and Pledge Agreement;
(k) not make any loans or advances to any third party, including any member, principal or Affiliate of the Borrower, or any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) not pledge its Assets for the benefit of any other Person, except as expressly permitted under the Loan Documents;
(m) not identify itself or hold itself out as a division of any other Person or conduct any business in another name;
(n) maintain adequate capital in light of its current and contemplated business operations; [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION.
(o) act solely in its own limited liability company name and not that of any other Person;
(g) not holding itself out as having agreed to pay , any of its officers or Guaranteeany of their respective Affiliates, or as otherwise being liable forand at all times use its own stationery, the obligations invoices and checks separate from those of any Member and other Person, any of such Member’s respective its officers and Affiliates;
(h) not making or any loans or extending any Indebtedness to, or acquiring any Indebtedness of, the Members or of their respective Affiliates;
(ip) not creatingacquire obligations or securities of its members, granting shareholders or suffering to exist any Liens (other than Permitted Liens) on property of the Company (Affiliates, as applicable, except as contemplated by expressly permitted under the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Loan Documents;
(kq) maintaining all of its assets in its own name and not commingling its assets with those of take any other Personaction that knowingly shall cause any Relevant Party to become insolvent;
(lr) paying keep minutes of the actions of the member of any Relevant Party and observe all limited liability company and other organizational formalities;
(s) cause its members, managers, directors, officers, agents and other representatives to act at all times with respect to each Relevant Party consistently and in furtherance of the foregoing and in the best interests of each Relevant Party;
(t) pay its own operating liabilities and expenses (including, as applicable, shared personnel and other liabilities overhead expenses) only out of its own funds;; or
(mu) observing at all times maintain an independent member of Borrower and Pledgor (as the term “independent member” is defined in the applicable limited liability company formalities, including maintaining meeting minutes or record meeting and acting on behalf of itself only pursuant to due authorization, required hereby and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure agreement of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company Borrower or Pledgor, as a separate legal Person or the limited liability of the Members, or their respective Affiliatesapplicable).
Appears in 1 contract
Separateness. Each Since the formation of the Members and the Managing Member acknowledges that the Company is to be formed and operated as a special purpose entity, distinct and separate from any Member or its Affiliates. Accordingly, the Managing Member shall cause the Company to maintain its existence separate and distinct from any other Person, including taking the following actions:
Purchaser (a) maintaining Purchaser ------------ has incurred no debt other than trade payables and expense accruals in connection with its operations in the normal course of business; (b) Purchaser has maintained its books and records separate from the books and records of any other entity, has maintained separate bank accounts and no funds of Purchaser have been commingled with funds of any other entity; (c) Purchaser has kept in full effect its existence, rights and franchises as a limited liability company corporation under the laws of the State of Delaware Delaware, and obtaining has obtained and preserving preserved its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and each other instrument or agreement necessary or appropriate to properly administer this Agreement and permit and effectuate the transactions contemplated hereby and thereby;
(b) maintaining its own deposit accounts, separate from those of each Member and any of their respective officers and Affiliates;
(c) conducting all material transactions between the Company and any of its Affiliates on an arm’s length basis and on commercially reasonable terms;
Receivables; (d) allocating fairly Purchaser does not own any subsidiary and reasonably the cost of has not loaned or advanced any shared overhead expensesmoneys to, including office spaceor made an investment in, with the Managing Member and the Class B Members and any of their respective officers and Affiliates;
Person; (e) conducting its affairs separately from those of each Member and its officers and Affiliates, and maintaining accurate and separate books, records and accounts and financial statements;
Purchaser has not made any capital expenditures; (f) acting solely Purchaser has not guaranteed (directly or indirectly), except with respect to its obligation to repurchase Receivables pursuant to the terms of the Sale and Servicing Agreement, endorsed or otherwise become contingently liable (directly or indirectly) for the obligations of, or owned or purchased any stock, obligations or securities of or any other interest in, or made any capital contribution to, any Person; and (g) Purchaser has not engaged in its own limited liability company name and any other action that bears on whether the separate legal identity of Purchaser will be respected and, without limitation of the foregoing, Purchaser has not that (1) held itself out as being liable for the debts of any other Person;
party, (g2) not holding itself out as having agreed to pay acted other than in its corporate name and through its duly authorized officers or Guaranteeagents, and (3) created, incurred, assumed, or as otherwise being in any manner become liable for, the obligations in respect of any Member indebtedness except trade payables and expense accruals incurred in the ordinary course of business and which are incidental to its business purpose. In the event of any breach of such Member’s respective officers a representation and Affiliates;
(h) warranty made by Purchaser hereunder, Originator covenants and agrees that it will not making take any loans action to pursue any remedy that it may have hereunder, in law, in equity or extending any Indebtedness tootherwise, until a year and a day have passed since the date on which all Notes, Certificates, pass-through certificates or other similar securities issued by Purchaser, or acquiring any Indebtedness ofa trust or similar vehicle formed by Purchaser, the Members have been paid in full. Originator and Purchaser agree that damages will not be an adequate remedy for such breach and that this covenant may be specifically enforced by Purchaser, Issuer or their respective Affiliates;
(i) not creating, granting or suffering to exist any Liens (other than Permitted Liens) on property of the Company (except as contemplated by the Customer Agreements and the Transaction Documents);
(j) not acquiring any asset other than any asset conveyed to the Company pursuant to any of the Customer Agreements or Transaction Documents or purchased by the Company in accordance with the Customer Agreements or Transaction Documents;
(k) maintaining all of its assets in its own name and not commingling its assets with those of any other Person;
(l) paying its own operating expenses and other liabilities out of its own funds;
(m) observing all limited liability company formalities, including maintaining meeting minutes or record meeting and acting Indenture Trustee on behalf of itself only pursuant to due authorization, required hereby the Noteholders and by the Certificate of Formation;
(n) maintaining adequate capital for the normal obligations reasonably foreseeable in light of its contemplated business operations;
(o) not acquiring obligations or the securities of any Member or any of such Member’s officers and Affiliates, except as required under the Customer Agreements or Transaction Documents;
(p) holding itself out to the public as a legal entity separate and distinct from any other Person, including the Members;
(q) correcting any known misunderstanding regarding its separate identity;
(r) not forming, acquiring or holding any subsidiaries (except as contemplated by the Customer Agreements or Transaction Documents); and
(s) not identifying itself as a department or division of any Member or any of such Member’s respective officers and Affiliates. The failure Owner Trustee on behalf of the Company to comply with any of the foregoing provisions of this Section 8.6 shall not affect the status of the Company as a separate legal Person or the limited liability of the Members, or their respective AffiliatesCertificateholders.
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