Separateness. The Borrower shall at all times (a) maintain its bank accounts, books 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 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 (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 Member or any Affiliate of the 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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatment.
Appears in 2 contracts
Sources: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Separateness. The Borrower shall at all times shall:
(aA) maintain its bank accounts, books and records separate from any other Person and otherwise ensure that the records and books of the Borrower reflect the account separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets from those of any other Person Person;
(B) pay its own operating expenses and shall liabilities from its own funds;
(C) not commingle hold itself as being liable for the debts of any other Person, pledge its funds or assets with those to secure the obligations 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 Existing Security and the Security), guarantee any obligation 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 Person or become obligated for the debts of any other Person and not or hold out its credit or assets as being available to satisfy pay the obligations of any other Person, ;
(jD) 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 keep its assets for and liabilities (other than in accordance with the benefit Servicing and Cash Management Agreement and subject to the Existing Security) separate from those of all other Persons and not commingle its assets (other than in accordance with the Servicing and Cash Management Agreement and subject to the Existing Security) with the assets of any other Person, ;
(mE) hold itself out and identify itself as a maintain bank accounts separate and distinct entity under its own name and not as a division or part of from 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 than in accordance with the Member or any Affiliate of the Borrower except in the ordinary course of its business Servicing and on terms that are fair Cash Management Agreement and no less favorable subject to the Borrower than those terms Existing Security);
(F) to the extent required under GAAP, ensure 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 consolidated financial statements including the Borrower, (q) compensate its employees, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders;
(G) at all times hold itself out to the public and all other Persons as a company separate from all other Persons;
(H) file 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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately tax returns separate from those of any other Person, except to the extent it is not required to file tax returns under Applicable Laws;
(xI) ensure conduct its business in its own name and comply with all organisational formalities necessary to maintain its separate existence;
(J) not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm's-length transaction (it being acknowledged by the Parties hereto that the Borrower’s officers Transaction Documents are on such terms);
(K) use separate invoices bearing its own name;
(L) correct any known misunderstanding regarding its separate identity and Managers do notnot identify itself as a department or division of any other Person; and
(M) not buy, in such capacitiesor hold any evidence of, act on behalf Financial Indebtedness of other Persons and (y) observe, follow and ensure any Affiliate except as expressly contemplated by the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentTransaction Documents.
Appears in 2 contracts
Sources: Securitisation Agreement (Encore Capital Group Inc), Securitization Agreement (Encore Capital Group Inc)
Separateness. The Borrower Each Obligor shall at all times times:
(a) observe all applicable entity procedures necessary to maintain its bank accountsseparate existence and formalities, books and including:
(i) maintaining minutes or records separate from any other Person and otherwise ensure that the records and books of meetings of the Borrower reflect the separate existence members and/or managers of the Borrower and its assets, Obligor;
(bii) separately identify and segregate its funds and assets from those acting on behalf 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 itself only pursuant to due authorization of the Borrower’s funds members and/or managers, including, when applicable, any independent managers or assets), members; and
(ciii) hold its assets in conducting its own name, (d) engage in transactions and conduct all business activities in its own name and present itself through authorized agents pursuant to the public as a company separate from its Member, Subsidiaries and all other Persons Constitutional Documents;
(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, (kb) allocate fairly and reasonably any shared expenses includingexpenses, without limitation, including overhead for shared office space and shall or common employees (if any);
(c) use separate and distinct stationery, invoices and checkschecks bearing its own name;
(d) prepare and maintain its own full and complete books, accounting records (lincluding 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 (other than the other Obligor);
(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 an Obligor 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 (other than the other Obligor), 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 debts of the Sponsor or any Affiliate thereof (other than the other Obligor) and not guarantee the debts of the Sponsor or any Affiliate thereof (other than the other Obligor) except as otherwise expressly permitted by this Agreementthe Finance Documents;
(h) not acquire or assume obligations or securities of, not pledge 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 for the benefit and liabilities separate and apart from those 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 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 Obligors from such Affiliate(s) and to disclose the separate nature of the Obligors’ Indebtedness;
(nj) not make loans to prepare and file its own tax returns separate from those of any Person except to the extent that the Obligor 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 for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expensesas provided under the Finance Documents), ;
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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, (rl) maintain adequate capitalization in light of its contemplated business and operations, obligations;
(sm) take all appropriate action necessary hold itself out to maintain its existence third parties as a limited liability company in good standing 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 laws separateness of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately Obligors from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons ; and (yn) observe, follow have and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 maintain Constitutional Documents which comply with the Commission pursuant requirements of this Section 12.24 (Separateness), provided that no limitation in this Section 12.24 (Separateness) shall apply to a request for confidential treatmentthe Obligors as among one another.
Appears in 2 contracts
Sources: Common Terms Agreement (Venture Global, Inc.), Common Terms Agreement (Venture Global, Inc.)
Separateness. The Borrower Each Obligor shall at all times times:
(a) observe all applicable entity procedures necessary to maintain its bank accountsseparate existence and formalities, books and including:
(i) maintaining minutes or records separate from any other Person and otherwise ensure that the records and books of meetings of the Borrower reflect the separate existence members and/or managers of the Borrower and its assets, Obligor;
(bii) separately identify and segregate its funds and assets from those acting on behalf 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 itself only pursuant to due authorization of the Borrower’s funds members and/or managers, including, when applicable, any independent managers or assets), members; and
(ciii) hold its assets in conducting its own name, (d) engage in transactions and conduct all business activities in its own name and present itself through authorized agents pursuant to the public as a company separate from its Member, Subsidiaries and all other Persons Constitutional Documents;
(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, (kb) allocate fairly and reasonably any shared expenses includingexpenses, without limitation, including overhead for shared office space and shall or common employees (if any);
(c) use separate and distinct stationery, invoices and checkschecks bearing its own name;
(d) prepare and maintain its own full and complete books, accounting records (lincluding 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 (other than the other Obligor);
(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 an Obligor 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 (other than the other Obligor), 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 debts of the Sponsor or any Affiliate thereof (other than the other Obligor) and not guarantee the debts of the Sponsor or any Affiliate thereof (other than the other Obligor) except as otherwise expressly permitted by this Agreementthe Finance Documents;
(h) not acquire or assume obligations or securities of, not pledge 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 for the benefit and liabilities separate and apart from those 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 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 Obligors from such Affiliate(s) and to disclose the separate nature of the Obligors’ Indebtedness;
(nj) not make loans to prepare and file its own tax returns separate from those of any Person except to the extent that the Obligor 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 for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expensesas provided under the Finance Documents), ;
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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, (rl) maintain adequate capitalization in light of its contemplated business and operations, obligations;
(sm) take all appropriate action necessary hold itself out to maintain its existence third parties as a limited liability company in good standing 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 laws separateness of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately Obligors from those of any other Person, ; and
(xn) ensure that the Borrower’s officers have and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 maintain Constitutional Documents which comply with the Commission pursuant requirements of this Section 12.24 (Separateness), provided that no limitation in this Section 12.24 (Separateness) shall apply to a request for confidential treatmentthe Obligors as among one another.
Appears in 2 contracts
Sources: Common Terms Agreement (Venture Global, Inc.), Common Terms Agreement (Venture Global, Inc.)
Separateness. The Each Borrower shall:
(i) strictly comply with all organizational formalities necessary to maintain its 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, provided that the Persons who serve on such board of directors, board of managers, or similar management body need not be different individuals;
(iii) conduct its business solely in its own name and in a manner not 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 at all times 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;
(aiv) provide for the payment of its own operating expenses and liabilities from its own funds and not the funds of any other Person;
(v) maintain its assets, funds, and transactions, including its bank accounts, separate from those of any other Person, and reflect such assets and transactions in financial statements and books and records that are separate from those of any other Person and otherwise ensure that the records and books of the Borrower reflect the Person;
(vi) file its own tax returns separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets from those of any other Person (except to the extent that such Borrower is treated as a “disregarded entity” for tax purposes and shall is not commingle required to file tax returns under applicable law) and pay any taxes required to be paid under applicable Law;
(vii) not hold itself out to be responsible for or have its funds credit 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 debts or obligations of any other Person, (j) not acquire except to 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 extent permitted by under this Agreement, ;
(viii) not pledge its assets for the benefit of any other Person, except to the extent permitted under this Agreement;
(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, (nix) not make loans to acquire Equity Interests in any Person that is a direct or indirect parent of such Borrower;
(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 Member or any Affiliate of the 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, (rx) maintain adequate capitalization capital and a sufficient number of employees for the normal operations reasonably foreseeable in a business of its size and character and in light of its contemplated business and operations, ;
(sxi) take all appropriate action necessary to maintain its existence as a limited liability company in good standing under pay the laws of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings salaries of its Managers and/or its Member separately from those of own employees; and
(xii) allocate fairly and reasonably any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, LLP dated on or about the Funding Date and referred to in Section 3.2(h). *Information marked overhead for office space shared with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatmentany Affiliate.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Renewable Energy Group, Inc.), Revolving Credit Agreement (Renewable Energy Group, Inc.)
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books acknowledges that each Agent and records the Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure that after the records and books of Closing Date, the Borrower reflect the shall take all reasonable steps to maintain each Relevant Party’s identity as a separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets legal entity from those of any 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 commingle its funds or assets with those permit any Subsidiary to:
(a) fail to hold all 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;
(b) except for payments made to a General Account governed by the terms of the Management Agreement, commingle its assets with the assets of any of its members, Affiliates, principals or any other Person;
(c) fail to maintain books, records and agreements as official records and separate from those of the members, principals and Affiliates or any other Person;
(d) engage in transactions and conduct all business activities in fail to maintain its own name and present itself to the public as a company bank accounts separate from its Memberthe members, Subsidiaries principals and all Affiliates of any other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), Person;
(e) other than the Transaction Documents and as otherwise expressly permitted by Section 7.16, enter into any Affiliate Transaction;
(f) fail to maintain separate Financial Statements from those of its financial statementsgeneral partners, accounting recordsmembers, and other entity documents separate from principals, Affiliates or 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, Person; provided, however, that the Relevant Parties financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements Financial Statements of its AffiliatesSponsor, provided that (i) appropriate notation shall be made on such consolidated financial statements contain a footnote indicating Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Borrower is a separate legal entity, Sponsor and that it maintains each Relevant Party maintain separate books and records and to indicate that it has separate assets none of the Relevant Parties’ Assets and liabilities, credit are not available to satisfy the debts and other obligations of the Sponsor or any other Person and (fii) pay its own obligations such Assets 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 Borrowerbe listed on each Relevant Party’s liabilities or obligations, own separate balance sheet;
(g) not engage in fail to promptly correct any transaction with any Affiliate involving any intent to defraud any Person, known or suspected misunderstanding regarding its separate identity;
(h) except as provided maintain its Assets in the Servicing Agreementsuch a manner that it will be costly or difficult to segregate, maintain an arm’s-length relationship with and not be ascertain or become operationally dependent on identify its individual assets from those of any Affiliate, other Person;
(i) not assume or guaranty guarantee or become obligated obligated, or hold itself as responsible, for the debts of any other Person Person, except under any Holdco Guaranty and not 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, (j) not acquire the debt or securities of the Member except under any Holdco Guaranty and Security Agreement or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Wholly Owned Opco Guaranty and Security Agreement;
(k) allocate fairly and reasonably make any shared expenses includingloans or advances to any third party, without limitationincluding any member, shared office space and shall use separate and distinct stationeryprincipal or Affiliate of the Borrower, invoices and checksor any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) except as otherwise expressly permitted by this Agreement, not 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 and identify itself as a separate division of any other Person or conduct any business in another name;
(n) fail to maintain adequate capital in light of its current and distinct entity under contemplated business operations;
(o) fail to act solely in its own limited liability company 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, of its officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Member or any Affiliate of the Borrower except in the ordinary course of its business their respective Affiliates, and on terms that are fair and no less favorable fail 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 at all times use its own funds for services provided to itstationery, (r) maintain adequate capitalization in light of its contemplated business invoices and operations, (s) take all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately checks separate from those of any other Person, any of its officers or any of their respective Affiliates;
(xp) ensure that the Borrower’s officers and Managers do notacquire obligations or securities of its members, in such capacities, act on behalf shareholders of other Persons and Affiliates, as applicable;
(yq) observe, follow and ensure the accuracy take any action that knowingly shall cause any Relevant Party to become insolvent;
(r) fail to keep minutes of the factual assumptions set forth actions of the member of any Relevant Party and observe all limited liability company and other organizational formalities;
(s) 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 non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇each Relevant Party;
(t) fail to pay its own liabilities and expenses (including, LLP dated on as applicable, shared personnel and 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
(u) fail at any time to have an independent director of Borrower or about Pledgor (as defined in the Funding Date and referred to in Section 3.2(happlicable limited liability company agreement of the Borrower or Pledgor, as applicable). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatment.
Appears in 2 contracts
Sources: Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.)
Separateness. The It
(i) acknowledges that each of the Lenders is entering into the transactions contemplated by this Agreement in reliance upon its identity as a legal entity that is separate from the other Borrower Parties, (ii) shall at take all times steps specifically required by this Agreement or reasonably required by the Administrative Agent or any 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 in the case of the Borrower, a partnership) with assets and liabilities distinct from those of the other Borrower Parties, and is not a division of such Persons and (iii) in furtherance of the foregoing, it shall:
(a) maintain its bank accounts, books and records Records and bank accounts 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 Borrower Party;
(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), (cb) at all times hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself out to the public as a company separate from its Member, Subsidiaries and all other Persons as a legal entity (including by using or in the case of the Borrower, a partnership) separate from its member (if applicable) and any other Person;
(c) file, or cause to be filed, tax returns, if any, for itself 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;
(d) except as contemplated herein or in any other Transaction Document:, pay its own signageliabilities only out of its own funds, distinct stationery for written communications and distinct logos), not commingle the Borrower's assets with assets of any other Person;
(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 or assets as being available to satisfy the obligations of others and not guarantee any obligations of any other Person, ;
(f) not pledge its assets to secure the obligations of any other Person;
(g) strictly comply with all organizational formalities to maintain its separate existence;
(h) maintain separate financial statements for itself;
(i) not have any employees;
(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 with other Persons any shared expenses including, without limitation, of its overheads for shared office space and shall use separate and distinct stationery, invoices and checks, (lif any);
(k) except as otherwise expressly permitted by this Agreement, 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 (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 Member or any Affiliate of the 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 its separate identity;
(l) ensure it does not engage in any business or activity and does not own any assets or property except as set forth in this Agreement and the separate existence and identity 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, (q) compensate its employees, if any, from act solely in 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 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 Agreement and by applicable law name (including through the Delaware Limited Liability Company ActGeneral Partner, as applicable), as the case may be, and keep accurate and proper books and records cause all representatives of account, (u) ensure that its funds will be clearly traceable General Partner from time to time to act at each step in any financial transaction, (v) ensure that decisions all times with respect to it consistently and in furtherance of the foregoing and in its business best interests;
(n) maintain its assets in a manner that facilitates their identification and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately segregation from those of the Affiliates of each Credit Party; and
(o) not to have it acquire any securities of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatment.
Appears in 1 contract
Sources: Asset Backed Revolving Credit Agreement (CURO Group Holdings Corp.)
Separateness. The Borrower shall at all times shall:
(aA) maintain its bank accounts, books and records separate from any other Person and otherwise ensure that the records and books of the Borrower reflect the account separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets from those of any other Person Person;
(B) pay its own operating expenses and shall liabilities from its own funds;
(C) not commingle hold itself as being liable for the debts of any other Person, pledge its funds or assets with those to secure the obligations 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 Existing Security and the Security), guarantee any obligation 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 Person or become obligated for the debts of any other Person and not or hold out its credit or assets as being available to satisfy pay the obligations of any other Person, ;
(jD) 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 keep its assets for and liabilities (other than in accordance with the benefit Servicing and Cash Management Agreement and subject to the Existing Security) separate from those of all other Persons and not commingle its assets (other than in accordance with the Servicing and Cash Management Agreement and subject to the Existing Security) with the assets of any other Person, ;
(mE) hold itself out and identify itself as a maintain bank accounts separate and distinct entity under its own name and not as a division or part of from 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 than in accordance with the Member or any Affiliate of the Borrower except in the ordinary course of its business Servicing and on terms that are fair Cash Management Agreement and no less favorable subject to the Borrower than those terms Existing Security);
(F) to the extent required under GAAP, ensure 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 consolidated financial statements including the Borrower, (q) compensate its employees, if any, have notes to the effect that the Borrower is a separate entity whose creditors have a claim on its assets prior to those assets becoming available to its equity holders;
(G) at all times hold itself out to the public and all other Persons as a company separate from all other Persons;
(H) file 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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately tax returns separate from those of any other Person, except to the extent it is not required to file tax returns under Applicable Laws;
(xI) ensure conduct its business in its own name and comply with all organisational formalities necessary to maintain its separate existence; EUI-1201462749v32 44
(J) not enter into any transaction with an Affiliate except on commercially reasonable terms similar to those available to unaffiliated parties in an arm's-length transaction (it being acknowledged by the Parties hereto that the Borrower’s officers Transaction Documents are on such terms);
(K) use separate invoices bearing its own name;
(L) correct any known misunderstanding regarding its separate identity and Managers do notnot identify itself as a department or division of any other Person; and
(M) not buy, in such capacitiesor hold any evidence of, act on behalf Financial Indebtedness of other Persons and (y) observe, follow and ensure any Affiliate except as expressly contemplated by the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentTransaction Documents.
Appears in 1 contract
Sources: Senior Facility Agreement (Encore Capital Group Inc)
Separateness. The Borrower Each Obligor shall at all times times:
(a) observe all applicable entity procedures necessary to maintain its bank accountsseparate existence and formalities, books and including:
(i) maintaining minutes or records separate from any other Person and otherwise ensure that the records and books of meetings of the Borrower reflect the separate existence members and/or managers of the Borrower and its assets, Obligor;
(bii) separately identify and segregate its funds and assets from those acting on behalf 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 itself only pursuant to due authorization of the Borrower’s funds members and/or managers, including, when applicable, any independent managers or assets), members; and
(ciii) hold its assets in conducting its own name, (d) engage in transactions and conduct all business activities in its own name and present itself through authorized agents pursuant to the public as a company separate from its Member, Subsidiaries and all other Persons Constitutional Documents;
(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, (kb) allocate fairly and reasonably any shared expenses includingexpenses, without limitation, including overhead for shared office space and shall or common employees (if any);
(c) use separate and distinct stationery, invoices and checkschecks bearing its own name;
(d) prepare and maintain its own full and complete books, accounting records (lincluding 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 (other than any other Obligor);
(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 an Obligor 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 (other than any other Obligor), 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 debts of the Sponsor or any Affiliate thereof (other than any other Obligor) and not guarantee the debts of the Sponsor or any Affiliate thereof (other than any other Obligor) except as otherwise expressly permitted by this Agreementthe Finance Documents;
(h) not acquire or assume obligations or securities of, not pledge 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 for the benefit and liabilities separate and apart from those 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 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 Obligors from such Affiliate(s) and to disclose the separate nature of the Obligors’ Indebtedness;
(nj) not make loans to prepare and file its own tax returns separate from those of any Person except to the extent that the Obligor 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 for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expensesas provided under the Finance Documents), ;
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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, (rl) maintain adequate capitalization in light of its contemplated business and operations, obligations;
(sm) take all appropriate action necessary hold itself out to maintain its existence third parties as a limited liability company in good standing 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 laws separateness of the State of Delaware, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately Obligors from those of any other Person, ; and
(xn) ensure that the Borrower’s officers have and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 maintain Constitutional Documents which comply with the Commission pursuant requirements of this Section 12.24 (Separateness), provided that, no limitation in this Section 12.24 (Separateness) shall apply to a request for confidential treatmentthe Obligors as among one another.
Appears in 1 contract
Separateness. The Borrower Company shall at all times times:
(a) maintain its bank accounts, books and records separate from any other Person and otherwise ensure that Person, and, without limiting the records and books generality of the Borrower reflect the separate existence of the Borrower and foregoing, maintain its assets, own bank accounts in its own name;
(b) separately identify hold itself out to the public and segregate its funds all other Persons as a legal entity separate from any Member and assets from those of any other Person Person;
(c) file its own tax returns as may be required under applicable Law to the extent (i) not part of a consolidated group filing a consolidated return or (ii) not treated as a division for tax purposes of another taxpayer, and shall pay any taxes so required to be paid under applicable Law;
(d) not commingle its funds or assets with those of any other Person Person, including, without limitation, any of its Members;
(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), (ce) hold conduct its assets own business 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), (ef) maintain and periodically prepare separate financial statements and not consolidate its financial statements, accounting records, and other entity documents separate from statements with 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, for any purpose;
(fg) pay its own obligations and liabilities out of its own funds and not hold out the credit or 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 as being able to satisfy the obligations of the Company;
(h) observe all formalities required by the Act, the Articles, and this Agreement;
(i) maintain an “arm’s-length relationship” with its Affiliates;
(j) pay the salaries of its own employees, if any;
(k) not hold out its credit or assets as being available to satisfy the obligations of any other Person;
(l) to the extent that it shares office space with its Members or Affiliates and pays any overhead costs or other expenses therefor, (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 reasonably, based on fair market value (without m▇▇▇-up to the Company) any shared expenses including, without limitation, overhead and expense for shared office space and shall space;
(m) use separate and distinct stationery, invoices bank accounts and checks;
(n) not (i) incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent, with any Affiliate (lother than nonrecourse loans made by Members in lieu of capital contributions to the Company and loans made by Members pursuant to Section 4.3), and (ii) except as otherwise expressly permitted by this Agreement, not to pledge any of 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 (except for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expenses), Affiliate;
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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 its separate identity;
(p) not make any loans or advances to any third party other than in the separate existence ordinary course and identity not acquire the securities of the Borrower, any Member;
(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 as assets in such a limited liability company in good standing under the laws of the State of Delawaremanner that it will not be costly or difficult to segregate, (t) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act)ascertain or identify its individual asset or assets, as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any Affiliate or any other Person, ;
(xr) ensure that not engage in any business or own any assets other than as provided in Section 1.3;
(s) direct any agent acting on its behalf to hold itself out as acting on its behalf;
(t) otherwise hold itself out as a separate legal entity;
(u) not take or cause to be taken any Bankruptcy Action with respect to the Borrower’s officers and Managers do not, Company in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy violation of the factual assumptions set forth terms of this Agreement or with respect to any Subsidiary without the without the affirmative vote of each of the Members and in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 compliance with the Commission pursuant to a request for confidential treatmentterms of the limited liability company of such Subsidiary.
Appears in 1 contract
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books acknowledges that each Agent and records the Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure that after the records and books of Closing Date, the Borrower reflect the shall take all reasonable steps to maintain each Relevant Party’s identity as a separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets legal entity from those of any 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 commingle its funds or assets with those permit any Subsidiary to:
(a) fail to hold all 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;
(b) except for payments made to a General Account governed by the terms of the Management Agreement, commingle its assets with the assets of any of its members, Affiliates, principals or any other Person;
(c) fail to maintain books, records and agreements as official records and separate from those of the members, principals and Affiliates or any other Person;
(d) engage in transactions and conduct all business activities in fail to maintain its own name and present itself to the public as a company bank accounts separate from its Memberthe members, Subsidiaries principals and all Affiliates of any other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), Person;
(e) other than the Transaction Documents and as otherwise expressly permitted by Section 7.16, enter into any Affiliate Transaction;
(f) fail to maintain separate Financial Statements from those of its financial statementsgeneral partners, accounting recordsmembers, and other entity documents separate from principals, Affiliates or 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, Person; provided, however, that the Relevant Parties’ financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements Financial Statements of its AffiliatesSponsor, provided that (i) appropriate notation shall be made on such consolidated financial statements contain a footnote indicating Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Borrower is a separate legal entity, Sponsor and that it maintains each Relevant Party maintain separate books and records and to indicate that it has separate assets none of the Relevant Parties’ Assets and liabilities, credit are available to satisfy the debts and other obligations of the Sponsor or any other Person and (fii) pay its own obligations such Assets 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 Borrowerbe listed on each Relevant Party’s liabilities or obligations, own separate balance sheet;
(g) not engage in fail to promptly correct any transaction with any Affiliate involving any intent to defraud any Person, known or suspected misunderstanding regarding its separate identity;
(h) except as provided maintain its Assets in the Servicing Agreementsuch a manner that it will be costly or difficult to segregate, maintain an arm’s-length relationship with and not be ascertain or become operationally dependent on identify its individual assets from those of any Affiliate, other Person;
(i) not assume or guaranty guarantee or become obligated obligated, or hold itself as responsible, for the debts of any other Person Person, except under any Holdco Guaranty and not 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, (j) not acquire the debt or securities of the Member except under any Holdco Guaranty and Security Agreement or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Wholly Owned Opco Guaranty and Security Agreement;
(k) allocate fairly and reasonably make any shared expenses includingloans or advances to any third party, without limitationincluding any member, shared office space and shall use separate and distinct stationeryprincipal or Affiliate of the Borrower, invoices and checksor any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) except as otherwise expressly permitted by this Agreement, not 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 and identify itself as a separate division of any other Person or conduct any business in another name;
(n) fail to maintain adequate capital in light of its current and distinct entity under contemplated business operations;
(o) fail to (i) act solely in its own limited liability company 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, of its officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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 partytheir respective Affiliates, or (pii) promptly correct any known misunderstanding regarding the separate existence and identity of the Borrower, (q) compensate its employees, if any, from at all times use its own funds for services provided to itstationery, (r) maintain adequate capitalization in light of its contemplated business invoices and operations, (s) take all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately checks separate from those of any other Person, any of its officers or any of their respective Affiliates;
(xp) ensure that the Borrower’s officers and Managers do notacquire obligations or securities of its members, in such capacities, act on behalf shareholders of other Persons and Affiliates, as applicable;
(yq) observe, follow and ensure the accuracy take any action that knowingly shall cause any Relevant Party to become insolvent;
(r) fail to keep minutes of the factual assumptions set forth actions of the member of any Relevant Party and observe all limited liability company and other organizational formalities;
(s) 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 non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇each Relevant Party;
(t) fail to pay its own liabilities and expenses (including, LLP dated on as applicable, shared personnel and 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
(u) fail at any time to have an independent director of Borrower or about Pledgor (as defined in the Funding Date and referred to in Section 3.2(happlicable limited liability company agreement of the Borrower or Pledgor, as applicable). [*Information marked with an asterisk herein **] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Commission pursuant to a request for confidential treatmentSecurities and Exchange Commission.
Appears in 1 contract
Sources: Credit Agreement (Sunrun Inc.)
Separateness. The Borrower Oversight Committee shall at cause the Company to do or cause to be done all times things necessary to preserve and keep in full force and effect its existence as a separate legal entity. Except as otherwise provided in the Plan, the Oversight Committee also shall cause the Company to:
(a) maintain its bank accounts, books 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 bank accounts;
(b) at all times hold itself out to the public and all other Persons as a legal entity separate assets from the Member and liabilitiesany other Person;
(c) as provided herein, (f) pay file its own obligations and liabilities out of its funds and assets and shall not permit other Persons tax returns, if any, as may be required under applicable Law, to the extent (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, (gA) not engage in part of a consolidated group filing a consolidated return or Case 17-11375-BLS Doc 2624-1 Filed 04/10/18 Page 10 of 60 returns or (B) not treated as a division for tax purposes of another taxpayer, and pay any transaction with any Affiliate involving any intent taxes so required to defraud any Person, be paid under applicable Law;
(hd) except as provided in the Servicing Plan, the U.S. Acquisition Agreement, the Shared Services Agreement, the Transition Services Agreement, this Agreement and the Plan Administrator Agreement (together, the “Transaction Documents”), not commingle its assets with assets of any other Person;
(e) except as provided in the Transaction Documents, conduct its business in its own name and comply with all organizational formalities to maintain its separate existence;
(f) maintain separate financial statements; and, if consolidated with financial statements of affiliates, include footnotes to the effect that the Company is a separate legal entity and that its assets are not available to satisfy the claims against affiliates;
(g) except as provided in the Transaction Documents, pay its own liabilities only out of its own funds, provided that the foregoing shall not require the Member to make any capital contributions to the Company;
(h) maintain an arm’s-arm’s length relationship with its affiliates and not be or become operationally dependent on any Affiliate, the Member;
(i) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit or assets as being available to satisfy the obligations of any other Person, others;
(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, overhead for shared office space and shall space;
(k) use separate and distinct stationery, invoices and checks, ;
(l) except as otherwise expressly permitted by this Agreement, 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 (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 Member or any Affiliate of the 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 its separate identity; Case 17-11375-BLS Doc 2624-1 Filed 04/10/18 Page 11 of 60
(n) maintain capital as provided in the separate existence Plan, provided that the foregoing shall not require the Member to make any capital contributions to the Company;
(o) cause the Oversight Committee to meet at least annually or act pursuant to written consent and identity keep minutes of such meetings and actions and observe all other Delaware limited liability company formalities;
(p) not acquire any securities of the Borrower, Member; and
(q) compensate advise its employeesManagers, if anyofficers, from its own funds for services provided agents and other representatives to itact at all times, (r) maintain adequate capitalization in light of its contemplated business and operations, (s) take all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 the Company, consistently and daily operations have been duly authorized in accordance with furtherance of the Borrower LLC Agreement, (w) hold any meetings foregoing. Failure of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act Company or Oversight Committee on behalf of other Persons and (y) observethe Company, follow and ensure the accuracy to comply with any of the factual assumptions set forth foregoing covenants or any other covenants contained in this Agreement shall not affect the non-consolidation opinion status of H▇▇▇▇▇ & B▇▇▇▇, LLP dated on the Company as a separate legal entity 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 limited liability of the Commission pursuant to a request for confidential treatmentMember or the Oversight Committee.
Appears in 1 contract
Sources: Limited Liability Company Agreement
Separateness. The Borrower shall at all times (a) maintain acknowledges that the Creditor Parties are entering into the Finance Documents to which they are parties and the transactions contemplated thereby in reliance upon the Borrower’s and its bank accounts, books and records subsidiaries’ identity as a legal entity separate from any Non-Borrower Affiliate or any other Person and Affiliate of any Security Party. In that regard, except as otherwise ensure that contemplated by, explicitly permitted by or required under the records and Finance Documents, the Security Parties shall not:
(i) commingle any of their respective assets with the assets of any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate, any other Affiliate of any Security Party or any other person;
(ii) fail to maintain their respective records, books of the Borrower reflect account and bank accounts separate and apart from those of any other person;
(iii) fail to correct any misunderstandings known to such Security Parties regarding the separate existence identity of the Borrower and its assetssubsidiaries and any direct or indirect owner of Equity Interest in the Borrower, (b) separately identify and segregate its funds and assets from those any Non-Borrower Affiliate, any other Affiliate of any Security Party or any other Person and shall not commingle its funds person;
(iv) guarantee, become obligated for, or assets with those hold themselves out to be responsible for the debt of, any direct or indirect owner of any other Person (for the avoidance of doubt, Equity Interest in the Borrower’s use , any Non-Borrower Affiliate, any other Affiliate of third party cash management systems any Security Party or lockbox arrangements shall not constitute commingling of any other person;
(v) fail to file their own separate tax returns if required to file tax returns under applicable law, or file a consolidated federal income tax return with any other person, except as may be required by the Borrower’s funds or assets), Code and regulations and any other applicable tax laws;
(cvi) fail either to hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself themselves out to the public as a company legal entity 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 person or to conduct its business solely in 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 name 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 order 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 to mislead others as to the identity with which such other party is transacting business, or guaranty or become obligated (ii) to suggest that any of them are responsible for the debts of any third party (including any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate, any other Person Affiliate of any Security Party or any other person);
(vii) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of their respective contemplated business operations (provided that this clause (vii) shall not require any Security Party or the owner of any Equity Interests of any Security Party to seek or obtain any debt or equity financing or make any capital contributions);
(viii) except as may be required by the Code and regulations thereunder, hold themselves out as a department or division of any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate, any other Affiliate of any Security Party or any other person;
(ix) fail to maintain separate financial statements, showing their respective assets and liabilities separate and apart from those of any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate, any other Affiliate of any Security Party or any other person, provided that the Borrower and its credit as being subsidiaries may be consolidated for accounting purposes with another person in accordance with U.S. generally accepted accounting principles and, when so consolidated, (i) the consolidating person will note on its consolidated financial statements that the Borrower’s and its subsidiaries’ respective assets are not available to satisfy the obligations claims of any other Person, creditors of such consolidating person and (jii) not acquire the debt or securities of the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliatesand its subsidiaries’ respective assets will also be listed on the Borrower’s and its subsidiaries’ own separate balance sheet;
(x) fail to pay any of their own liabilities and expenses only out of their own funds;
(xi) fail to pay, to the extent of its own available funds, the salaries of their own employees, if any, in light their contemplated business operations;
(kxii) fail to allocate fairly and reasonably any overhead expenses that are shared expenses includingwith any direct or indirect owner of Equity Interest in the Borrower, without limitationany Non-Borrower Affiliate, shared any other Affiliate of any Security Party or any other person, including paying for office space and shall services performed by any employee of any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate, any other Affiliate of any Security Party or any other person;
(xiii) to the extent used in their respective businesses, fail to use separate and distinct stationery, invoices and checks, checks bearing their own name;
(lxiv) except as otherwise expressly permitted by this Agreement, not pledge its assets for the benefit of fail to observe applicable company formalities or fail to comply with their by-laws; or
(xv) breach 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 Member or any Affiliate of the 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 obligations set forth in a comparable arm’s-length transaction with an unrelated third party, (p) promptly correct any known misunderstanding regarding the separate existence and identity Clause 10.17 hereof. Failure of the Borrower, (q) compensate its employees, if any, from its own funds for services provided to it, (r) maintain adequate capitalization in light any of its contemplated business subsidiaries or any direct or indirect owner of Equity Interest in the Borrower, any Non-Borrower Affiliate or any other Affiliate of any Security Party to comply with any of the foregoing covenants or any other separateness covenants contained in this Agreement shall not affect the status of the Borrower and operations, (s) take all appropriate action necessary to maintain its existence subsidiaries 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentseparate legal entity.
Appears in 1 contract
Sources: Second Lien Loan Agreement (Eagle Bulk Shipping Inc.)
Separateness. The Borrower shall at all times Each of Seller Parties acknowledges that the Administrative Agent and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the Originator and their respective other Affiliates (aeach, a “Related Entity”). In furtherance thereof, Seller hereby agrees to: (i) maintain its bank accounts, books and records and bank accounts 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 Related Entity; provided, however, that the Originator may maintain its Collection Accounts and shall Lock-Boxes for the benefit of Seller; (ii) at all times hold itself out to the public and all other Persons as a legal entity separate from its member and any other Person; (iii) have a board of directors separate from that of its member and any other Person; (iv) 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; (v) except as contemplated herein or in any other Transaction Document, not commingle its funds or assets with those assets of any other Person 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), (cvi) hold conduct its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself strictly comply with all organizational formalities to the public as a company maintain its separate from its Member, Subsidiaries and all other Persons existence; (including by using its own signage, distinct stationery for written communications and distinct logos), (evii) maintain its separate 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, ; (fviii) pay its own obligations and liabilities only out of its funds and assets and shall not permit other Persons own funds; (other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreementix) 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-arm’s length relationship with and not be or become operationally dependent on any Affiliateeach other Related Entity; (x) pay the salaries of its own employees, if any; (ixi) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit or assets as being available to satisfy the obligations of any other Person, others; (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, (kxii) allocate fairly and reasonably with other Persons any shared expenses including, without limitation, overhead for shared office space and shall space; (xiii) except as contemplated herein or in any other Transaction Document, use separate and distinct stationery, invoices and checks, ; (lxiv) except as otherwise expressly permitted by this Agreementcontemplated herein or in any other Transaction Document, not pledge its assets for the benefit of any other Person, ; (mxv) 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 Member or any Affiliate of the 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 its separate existence and identity of the Borrower, identity; (q) compensate its employees, if any, from its own funds for services provided to it, (rxvi) maintain adequate capitalization capital in light of its contemplated business purpose, transactions and operations, liabilities; (sxvii) take cause its board of directors to keep minutes of any meetings (if applicable) and actions and observe all appropriate action necessary to maintain its existence as a other Delaware limited liability company formalities; (xviii) not acquire any securities of its member; (xix) act solely in good standing its own name and through its own authorized managers, directors, members, officers and agents, except as expressly permitted under the laws of the State of DelawareTransaction Documents; and (xx) cause its directors, (t) observe strictly officers, agents and other representatives to act at all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions times with respect to its business Seller consistently and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy furtherance of the factual assumptions set forth foregoing and in the non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentSeller.
Appears in 1 contract
Sources: Receivables Purchase Agreement (MSC Industrial Direct Co Inc)
Separateness. The Borrower shall Company and the Subsidiaries shall, at all times times:
(a) maintain its bank accounts, books and records separate from any other Person and otherwise ensure that Person, and, without limiting the records and books generality of the Borrower reflect the separate existence of the Borrower and its assetsforegoing, maintain their own bank accounts in their own names;
(b) separately identify hold themselves out to the public and segregate its funds all other Persons as legal entities separate from any Member and assets from those other Person;
(c) file their own tax returns as may be required under applicable law to the extent (1) not part of a consolidated group filing a consolidated return or (2) not treated as a division for tax purposes of another taxpayer, and pay any other Person and shall taxes so required to be paid under applicable law;
(d) not commingle its funds or assets with those of any other Person (for the avoidance Person, including, without limitation, any 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), their Members;
(e) conduct their respective businesses in their respective names and strictly comply with all organizational formalities to maintain its their separate existence;
(f) maintain and periodically prepare separate financial statements, accounting records, statements and other entity documents separate from not consolidate their financial statements with 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, for any purpose; provided, however, that the financial position, assets, liabilities, net worth and operating results of the Borrower Company’s assets may be included in the a consolidated financial statements of statement with its Affiliates, Affiliates provided that appropriate notation shall be made in such consolidated financial statements contain a footnote indicating to indicate the separateness of the Company and its Affiliates and to indicate that the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate Company’s assets and liabilities, credit are not available to satisfy the debts and other obligations of its Affiliates.
(fg) pay its their own obligations and liabilities out of its their own funds and not hold out the credit or 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 as being able to satisfy the obligations of the Company or the Subsidiaries;
(h) observe all formalities required by the Delaware Act and their organizational documents and operating agreements;
(i) maintain an “arms-length relationship” with their Affiliates;
(j) pay the salaries of their own employees, if any;
(k) not hold out its their credit or assets as being available to satisfy the obligations of any other Personothers;
(l) to the extent that they share office space with their Members or Affiliates and pay toward the overhead cost, (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 reasonably, based on fair market value, any shared expenses including, without limitation, overhead and expense for shared office space and shall space;
(m) use separate and distinct stationeryinvoices, invoices bank accounts and checks;
(n) not incur any indebtedness, (l) except as otherwise expressly permitted by this Agreementsecured or unsecured, direct or indirect, absolute or contingent, with any Affiliate, and not pledge its any of their 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 (except for de minimus cash advances to Managers, officers and/or employees for travel and other ordinary course expenses), Affiliate;
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the 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 their separate identity;
(p) not make any loans or advances to any third party other than in the separate existence ordinary course and identity not acquire the securities of the Borrower, any Member;
(q) compensate its employeesmaintain their assets in such a manner that it will not be costly or difficult to segregate, 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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act)ascertain or identify their individual asset or assets, as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any Affiliate or any other Person, ;
(xr) ensure that the Borrower’s officers and Managers do not, not engage in such capacities, act on behalf of any business or own any assets other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, LLP dated on or about the Funding Date and referred to than as provided in Section 3.2(h)2.05;
(s) direct any agent acting on their behalf to hold itself out as acting on their behalf; and
(t) otherwise hold themselves out as separate legal entities. *Information marked with an asterisk herein has The provisions of this Section 2.06 shall not be revised or amended until the Acquisition Financing shall have been omitted and filed separately with the Commission pursuant to a request for confidential treatmentrepaid or except as required by any lender thereof.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Gramercy Capital Corp)
Separateness. The Borrower shall at all times Each Seller Party acknowledges that the Administrative Agent and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from the applicable Originator and their respective other Affiliates (aeach, a “Related Entity”). In furtherance thereof, Seller hereby agrees to: (i) maintain its bank accounts, books and records and bank accounts 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 Related Entity; provided, however, that Hawker, the applicable Originator or ENS, as applicable, may maintain its Collection Accounts and shall Lock-Boxes for the benefit of Seller; (ii) at all times hold itself out to the public and all other Persons as a legal entity separate from its member and any other Person; (iii) have a board of directors separate from that of its member and any other Person; (iv) 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; (v) except as contemplated herein or in any other Transaction Document, not commingle its funds or assets with those assets of any other Person 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), (cvi) hold conduct its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself strictly comply with all organizational formalities to the public as a company maintain its separate from its Member, Subsidiaries and all other Persons existence; (including by using its own signage, distinct stationery for written communications and distinct logos), (evii) maintain its separate 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, ; (fviii) pay its own obligations and liabilities only out of its funds and assets and shall not permit other Persons own funds; (other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreementix) 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-arm’s length relationship with and not be or become operationally dependent on any Affiliateeach other Related Entity; (x) pay the salaries of its own employees, if any; (ixi) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit or assets as being available to satisfy the obligations of any other Person, others; (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, (kxii) allocate fairly and reasonably with other Persons any shared expenses including, without limitation, overhead for shared office space and shall space; (xiii) except as contemplated herein or in any other Transaction Document, use separate and distinct stationery, invoices and checks, ; (lxiv) except as otherwise expressly permitted by this Agreementcontemplated herein or in any other Transaction Document, not pledge its assets for the benefit of any other Person, ; (mxv) 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 Member or any Affiliate of the 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 its separate existence and identity of the Borrower, identity; (q) compensate its employees, if any, from its own funds for services provided to it, (rxvi) maintain adequate capitalization capital in light of its contemplated business purpose, transactions and operations, liabilities; (sxvii) take cause its board of directors to keep minutes of any meetings (if applicable) and actions and observe all appropriate action necessary to maintain its existence as a other Delaware limited liability company formalities; (xviii) not acquire any securities of its member; (xix) act solely in good standing its own name and through its own authorized managers, directors, members, officers and agents, except as expressly permitted under the laws of the State of DelawareTransaction Documents; and (xx) cause its directors, (t) observe strictly officers, agents and other representatives to act at all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions times with respect to its business Seller consistently and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy furtherance of the factual assumptions set forth foregoing and in the non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentSeller.
Appears in 1 contract
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books 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 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 (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 Member or any Affiliate of the 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 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 Agreement and by applicable law (including the Delaware *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatment. Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇▇ & B▇▇▇▇▇, 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 a request for confidential treatment.
Appears in 1 contract
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books and records acknowledges that each Lender is entering into this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure after the date of this Agreement, the Borrower shall take all reasonable steps, including all steps that the records Administrative Agent may from time to time reasonably request 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 that comply 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 Organizational Documents, to maintain 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 identity as a company separate from its Member, Subsidiaries legal entity 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 to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, and the Borrower agrees that it maintains separate has and shall:
(a) enter into transactions with its affiliates and Parent only on an arm’s length basis on commercially reasonable terms and substantially similar to those that would be available on an arm’s-length basis with third parties other than its affiliates;
(b) maintain its books and records separate and apart from any other person;
(c) maintain its bank accounts separate and apart from any other person;
(d) not commingle its assets with the assets of any of its affiliates or those of any other entity and hold all of its liabilities and assets in its own name, except as otherwise permitted or provided for under the Loan Documents;
(e) hold itself out to the public as a legal entity separate and distinct from any other entity and conduct its business solely in its own name in order not (A) to mislead others as to the identity with which such other party is transacting business, or (B) to suggest that it is responsible for the debts of any third party (including any of its principals or affiliates);
(f) maintain separate financial statements, showing its assets and liabilities separate and apart from those of any other entity, and shall not have its assets listed on the financial statement of any other entity, it being understood that the Borrower’s financial statements may be consolidated with those of its affiliates in accordance with generally accepted accounting principles so long as such consolidated financial statements disclose, through appropriate footnotes or otherwise, the separate legal existence of the Borrower and that it has the Receivables have been sold to the Borrower pursuant to the Receivables Purchase Agreement;
(g) file its tax returns (if required to file any tax returns and to the extent not included in a consolidated tax return) separate assets and liabilities, apart from those of any other entity;
(fh) pay its own obligations liabilities and liabilities expenses from out of its funds own funds;
(i) (A) observe all organizational formalities to maintain its separate existence and assets operate in such a manner as its board of managers deems reasonable and shall not permit other Persons necessary or appropriate to preserve the limited liability of Parent, (other than B) preserve its existence as an entity duly organized, validly existing and in good standing under the Servicer acting solely as agent laws of the jurisdiction of its organization or formation, (C) maintain the separateness of the Borrower from the business and affairs of Parent or any affiliate of Parent, until one year and one day after all Obligations have been paid in accordance full and (D) maintain the special purpose, bankruptcy remote status of the Borrower. To the extent permitted by law, until one year and one day after all Obligations have been paid in full, ensure decisions with respect to the business and daily operations of the Borrower are independent of, and not dictated by, Parent or any affiliate of Parent;
(j) pay the salaries of its own employees, if any, out of its own funds and maintain a sufficient number of employees in light of its contemplated business purposes;
(k) not own any Subsidiary or make any investment in, any Person or entity without the consent of the Administrative Agent (acting with the Servicing Agreement) to pay consent of the Borrower’s liabilities or obligations, Required Lenders);
(gl) 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 guarantee or become obligated for the debts of any other Person and entity or person;
(m) not hold out its credit incur any Indebtedness except the Obligations or as being available to satisfy the obligations otherwise permitted under Section 6.1 of any other Person, this Agreement;
(jn) not acquire the debt obligations or securities of the Member its affiliates, owners or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Parent;
(ko) allocate fairly and reasonably any overhead expenses that are shared expenses includingwith affiliates, without limitation, shared including the paying for office space and shall services performed by any employee of an affiliate;
(p) use separate and distinct stationery, invoices and checkschecks bearing its own name;
(q) not share any common logo with or hold itself out as or be considered as a department or division of (A) any of its principals or affiliates, (lB) except as otherwise expressly permitted by this Agreement, any affiliate of a principal or (C) any other Person;
(r) not pledge its assets for the benefit of any other Personperson, except as otherwise provided for under the Loan Documents;
(ms) 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 Member or any Affiliate of the 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 misunderstandings regarding the its separate existence and identity of the Borrower, identity;
(q) compensate its employees, if any, from its own funds for services provided to it, (rt) maintain adequate capitalization capital in light of its contemplated business and operations, (s) take all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, ;
(u) ensure that its funds will be clearly traceable at each step in not form, acquire or hold any financial transaction, subsidiaries;
(v) except for any funds received from Parent or its members as a capital contribution or as otherwise contemplated by the Borrower’s Organizational Documents or any Loan Document, shall not (A) accept for its own account funds from Parent or its other affiliates; and other than as contemplated by the Loan Documents or (B) allow Parent or its other affiliates otherwise to supply funds to or guarantee any obligation of, the Borrower;
(w) not become involved in the day-to-day management of any affiliate;
(x) have a board of managers separate from that of Parent with at least one Independent Manager and ensure that all decisions with respect to its the Borrower’s business and daily operations have been duly authorized in accordance with and shall be independently made by the officers of the Borrower LLC Agreement, (w) hold any meetings pursuant to its Organizational Documents or resolutions of its Managers and/or its Member separately from those board of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and managers; and
(y) observe, follow materially violate or cause to be materially violated the facts and ensure assumptions as certified by the accuracy Borrower in connection with the opinion letter pertaining to substantive consolidation delivered to the Lenders on the Closing Date except as permitted by the Loan Documents. In the event of any inconsistency between the factual assumptions covenants set forth in this Section 5.6 or the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇other covenants set forth in this Agreement, LLP dated on or about in the Funding Date and referred to event that any covenant set forth in this Section 3.2(h). *Information marked with an asterisk herein has been omitted and filed separately with 5.6 poses a greater restriction or obligation than is set forth elsewhere in this Agreement, the Commission pursuant to a request for confidential treatmentcovenants set forth in this Section 5.6 shall control.
Appears in 1 contract
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books and records acknowledges that the Lender Parties are entering into this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure that after the records and books of date hereof, the Borrower reflect shall take all reasonable steps to maintain the Borrower’s identity as separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets legal entity from those of any each 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 to make it manifest to 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 parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, and the Borrower agrees that it maintains separate books and shall not:
(a) fail to hold all of its assets in its own name;
(b) commingle its assets with the assets of any of its members, Affiliates, principals or any other Person except as contemplated by the Loan Documents;
(c) fail to maintain books, records and agreements as official records and separate from those of the members, principals and Affiliates or any other Person;
(d) fail to maintain its bank accounts separate from the members, principals and Affiliates of any other Person;
(e) except for the Loan Documents and as otherwise expressly permitted by the Loan Documents, enter into any contract or agreement with any other Affiliate, or any of its members, principals or Affiliates, except with the consent of the Required Lenders and upon terms and conditions that it has separate assets are intrinsically fair, commercially reasonable and liabilitieson terms no less favorable to the Borrower than those that would be available on an arms-length basis with third parties other than any Affiliate of the Borrower or any of their respective members, principals or Affiliates;
(f) pay fail to promptly correct any Known or suspected misunderstanding regarding 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, separate identity;
(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 guarantee or become operationally dependent on any Affiliateobligated, (i) not assume or guaranty or become obligated hold itself as responsible, for the debts of any other Person and not Person, except as contemplated by the Loan Documents;
(h) hold out its credit as being available to satisfy the obligations of any other Person;
(i) 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 contemplated by the Loan Documents;
(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 assets for the benefit of any other PersonPerson except as contemplated under the Loan Documents;
(k) identify itself or hold itself out as a division of any other Person or conduct any business in another name;
(l) acquire obligations or securities of its members, shareholders of other Affiliates, as applicable;
(m) hold itself out fail to keep minutes of the actions of the member of the Borrower and identify itself as a separate observe all limited liability company and distinct entity under its own name and not as a division or part of any other Person, organizational formalities;
(n) not make loans fail to any Person (except for de minimus cash advances to Managerscause its members, officers and/or employees for travel managers, directors, officers, agents and other ordinary course expenses), representatives 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; or
(o) not enter into or be a party to, any transaction with the Member or any Affiliate of the Borrower except in the ordinary course fail to pay its own liabilities and expenses only out of its business and on terms that are fair and no less favorable to own funds, except as contemplated by 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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentLoan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Sunnova Energy International Inc.)
Separateness. The General Partner shall and shall cause the Borrower shall at all times to:
(a) operate its business in the ordinary course and for its own account;
(b) maintain books of account and business records separate from those of Steelco and any other Person, including separate financial statements, and will file its own tax returns;
(c) maintain its own bank accounts, books use separate invoices and records cheques and not commingle or pool its funds or other assets with those any other Person;
(d) maintain the office premises provided by Steelco as the office premises of the Borrower and the General Partner with a mailing address which identifies the Borrower and the General Partner and separate stationery different from that of Steelco and any other Person and otherwise ensure that those premises will be conspicuously identified as the records and books of the Borrower reflect the separate existence office of the Borrower and its assetsthe General Partner, (b) separately identify so they can easily be located 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 identified by using its own signage, distinct stationery for written communications and distinct logos), outsiders;
(e) maintain its financial statements, accounting records, use stationery and other entity documents separate telephone and facsimile numbers distinct from any other Person Steelco 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 will use a distinct signature on all email correspondence identifying such correspondence as originating from the Borrower may be included in and 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, General Partner;
(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 assets for the benefit of any other Person, (m) hold itself out and identify itself as a separate and distinct entity deal with third parties separately under its own name and not as a division or part of any other Person;
(g) maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or otherwise identify its individual assets;
(nh) 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 in the Member or any Affiliate case of the Borrower except in the ordinary course General Partner, have a distinct board 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, directors;
(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 as a limited liability company in good standing under the laws of the State of Delaware, (ti) observe strictly all limited liability companydistinct corporate procedures and formalities, organizational including without limitation, the holding of meetings, the recording and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may bemaintenance of minutes of such meetings, and keep accurate the recording of and proper books and records maintenance of accountresolutions adopted at such meetings, (u) ensure that its funds will be clearly traceable at in each step in any financial transaction, (v) ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately case from those of any other Person, ;
(xj) ensure that the Borrower’s officers each officer and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy director of the factual assumptions General Partner has discharged and will discharge his or her respective fiduciary duties and obligations to the General Partner in accordance with, and subject to, all applicable laws;
(k) ensure that any and all of the transactions between Steelco and the Borrower and the General Partner have been and will be fully documented and have reflected and will reflect transactions on arm’s length terms undertaken in good faith;
(l) at all times comply with the provisions set forth in the non-consolidation opinion General Partner’s articles of H▇▇▇▇▇ & B▇▇▇▇, LLP dated on incorporation and bylaws and the partnership agreement of the Borrower; and
(m) not hold itself out to be responsible for the debts or about the Funding Date decisions or actions respecting the daily business and referred to affairs of any other Person (other than as provided in Section 3.2(hthe Loan Documents). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatment.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Algoma Steel Group Inc.)
Separateness. The Borrower acknowledges that the Administrative Agent and the Lenders are entering into the transactions contemplated by this Agreement in reliance upon the Borrower’s identity as a legal entity that is separate from the Seller and its respective other Affiliates (each, a “Related Entity”). Therefore, from and after the date of execution and delivery of this Agreement, the Borrower shall at take all times reasonable steps, including, without limitation, all steps that the Administrative Agent or any Lender 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 an entity with assets and liabilities distinct from those of the other Related Entities and not just a division thereof. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, except as herein specifically otherwise provided, the Borrower will:
(ai) maintain its bank accounts, own books 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 apart from those of any other Person and shall not commingle its funds or assets with those of any other Person Related Entity;
(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), (cii) at all times hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself out to the public as a company legal entity separate and apart from its Member, Subsidiaries parent and all any other Persons Related Entity;
(including by using iii) have a Board composed differently from that of its parent;
(iv) file its own signagetax returns, distinct stationery 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 written communications tax purposes of another taxpayer, and distinct logos)pay any taxes so required to be paid under applicable law;
(v) conduct its business solely in its own name in order not to (A) mislead others as to the identity with which such other party is transacting business or (B) suggest that it is responsible for the debts of any third party;
(vi) subject to the provisions of its Organizational Documents, at all times maintain at least one Independent Manager;
(evii) maintain its financial statementsOrganizational Documents in conformity with this Agreement, accounting recordssuch that (A) it does not amend, restate, supplement or otherwise modify such Organizational Document in any respect that would impair its ability to comply with the terms or provisions of any of the Transaction Documents, including, without limitation, this Section; and other entity documents separate from any other Person (B) it provides for the notice, the Borrower certification and shall issue and approve its own separate financial statements annually and shall the Administrative Agent’s written acknowledgement specified in Section 5.1(b)(v) hereof;
(viii) ensure that all limited liability company actions with respect to (A) the Borrower’s books and records reflect the Borrower’s transactions, provided, however, the financial position, assets, liabilities, net worth and operating results filing for any petition of bankruptcy of the Borrower may be included in and (B) the merger, consolidation, dissolution or liquidation of the Borrower are duly authorized by unanimous vote of its managers (including the Independent Manager);
(ix) maintain statements of account separate from those of any other Person, separately identifying its own assets, liabilities and financial affairs, and ensure that any consolidated financial statements of its Affiliates, provided any other Person that such consolidated financial statements contain a footnote indicating include Borrower indicate that the assets of the Borrower is a separate legal entity, are not available to creditors of such Person;
(x) remain solvent and that it maintains separate books and records and that it has separate assets and liabilities, (f) pay its own obligations indebtedness, operating expenses and other liabilities out of its own funds and assets assets, allocating fairly 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 reasonably any general overhead or obligations, (g) not engage in any transaction with administrative expenses incurred by itself or any Affiliate involving any intent to defraud any Person, on its behalf;
(hxi) except as provided in the Servicing Agreement, maintain an arm’s-length relationship with its Related Entities, and enter into contracts or agreements with any such Related Entity only upon terms and conditions that are commercially reasonable, intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than Related Entities;
(xii) not be hold itself out as having agreed to pay or become operationally dependent on any Affiliate, (i) not assume or guaranty or become obligated liable for the debts of any of its Related Entities or fail to correct any known misrepresentation with respect to the foregoing;
(xiii) not operate or purport to operate as an integrated, single economic unit with respect to any of its Related Entities or any other Person;
(xiv) not seek or obtain credit or incur any obligation to any third party based upon the assets of any of its Related Entities, or induce any third party to rely on the creditworthiness of any such Person in connection therewith;
(xv) use, as applicable, stationery, invoices, checks and not hold out its credit as being available to satisfy the obligations other business forms separate from those of any other Person, ;
(jxvi) 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 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 (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 Member or any Affiliate of the 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 its separate existence and identity of the Borrower, identity;
(q) compensate its employees, if any, from its own funds for services provided to it, (rxvii) maintain adequate capitalization capital in light of its contemplated business and operations, purposes;
(sxviii) take observe all appropriate action necessary to maintain its existence 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 Agreement its Organizational Documents and by applicable law (including the Delaware Limited Liability Company Act), ; and
(xix) take such other actions as the case may be, and keep accurate and proper books and records of account, (u) ensure that are necessary on its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions with respect part to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers facts and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of Hissued by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & B▇▇▇▇ LLP, as counsel for the Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 connection with the Commission pursuant closing or initial purchase or contribution under the Purchase Agreement and relating to a request for confidential treatmentsubstantive consolidation issues, and in the certificates accompanying such opinion, remain true and correct in all material respects at all times.
Appears in 1 contract
Sources: Credit and Security Agreement (Martin Marietta Materials Inc)
Separateness. The Borrower shall at all times In order to maintain its status as a separate entity and to avoid any confusion or potential consolidation with any Affiliate, Lake District represents and warrants that in the conduct of its operations since its organization it has and will continue to observe the following covenants: (ai) maintain books and records and bank accounts separate from those of any other person or entity; (ii) maintain its bank accountsassets in such a manner that it is not costly or difficult to segregate, books identify or ascertain such assets; (iii) comply with all organizational formalities necessary to maintain its separate existence; (iv) hold itself out to creditors and records the public as a legal entity separate and distinct from any other Person entity; (v) maintain separate financial statements, showing its assets and otherwise ensure that the records liabilities separate and books of the Borrower reflect the separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets apart from those of any other Person and shall not have its assets listed on any financial statement of any other person or entity, except that Lake District’s assets may be included in a consolidated financial statement of its’ Affiliate so long as appropriate notation is made on such consolidated financial statements to indicate the separateness of Lake District from such Affiliate and to indicate that Lake District’s assets and credit are not available to satisfy the debts and other obligations of such Affiliate or any other person or entity (except to the extent of the other Lake District’s liabilities hereunder); (vi) prepare and file its own tax returns separate from those of any person or entity to the extent required by applicable law, and pay any taxes required to be paid by applicable law; (vii) allocate and charge fairly and reasonably any common employee or overhead shared with Affiliates; (viii) not enter into any transaction with any Affiliate, except on an arm’s-length basis on terms which are intrinsically fair and no less favorable than would be available for unaffiliated third parties, and pursuant to written, enforceable agreements; (ix) conduct business in its own name, and use separate stationery, invoices and checks bearing its own name; (x) except as required by the Loan Documents, not commingle its assets or funds or assets with those of any other Person person or entity; (for the avoidance of doubtxi) not assume, the Borrower’s use of third party cash management systems guarantee 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 debts 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, person or entity; (jxii) correct any known misunderstanding as to its separate identity; (xiii) not acquire permit any Affiliate to guarantee or pay its obligations (other than limited guarantees and indemnities set forth in the debt or securities of the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Loan Documents); (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 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, (nxiv) not make loans or advances to any Person other person or entity; (except for de minimus cash advances xv) pay its liabilities and expenses out of and 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 Member or any Affiliate of the Borrower except in the ordinary course extent 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, own funds; (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, (rxvi) maintain adequate capitalization a sufficient number of employees in light of its contemplated business purpose and operationspay the salaries of its own employees, if any, only from and to the extent of its own funds; and (sxvii) take cause the managers, officers, employees, agents and other representatives of Lake District to act at all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions times with respect to its business Lake District consistently and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy furtherance of the factual assumptions set forth foregoing and in the non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇Lake District; provided, LLP dated on or about however, that none of the Funding Date and referred foregoing provisions shall require any equity owner to in Section 3.2(h). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant make additional capital contributions to a request for confidential treatmentLake District.
Appears in 1 contract
Sources: Construction Loan Agreement
Separateness. The Borrower shall at all times Seller acknowledges that the Administrative Agent and the Purchasers are entering into the transactions contemplated by this Agreement in reliance upon Seller’s identity as a legal entity that is separate from each of the Originators and their respective other Affiliates (aeach, a “Related Entity”). Seller will:
(i) maintain its bank accounts, books and records and bank accounts 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 Related Entity;
(ii) at all times hold itself out to the public and shall all other Persons as a legal entity separate from its member and any other Person;
(iii) have a board of directors separate from that of its member and any other Person;
(iv) file its own tax returns, if any, as may be required under applicable law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(v) except as contemplated herein or in any other Transaction Document, not commingle its funds or assets with those assets of any other Person 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), (cvi) hold conduct its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself strictly comply with all organizational formalities to the public as a company maintain its separate from its Member, Subsidiaries and all other Persons existence;
(including by using its own signage, distinct stationery for written communications and distinct logos), (evii) maintain its separate 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, ;
(fviii) pay its own obligations and liabilities only out of its funds and assets and shall not permit other Persons own funds;
(other than the Servicer acting solely as agent of the Borrower in accordance with the Servicing Agreementix) 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-arm’s length relationship with and not be or become operationally dependent on any Affiliateeach other Related Entity;
(x) pay the salaries of its own employees, if any;
(ixi) not assume or guaranty or become obligated for the debts of any other Person and not hold out its credit or assets as being available to satisfy the obligations of any other Person, others;
(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, (kxii) allocate fairly and reasonably with other Persons any shared expenses including, without limitation, overhead for shared office space and shall space;
(xiii) except as contemplated herein or in any other Transaction Document, use separate and distinct stationery, invoices and checks, ;
(lxiv) except as otherwise expressly permitted by this Agreementcontemplated herein or in any other Transaction Document, not pledge its assets for the benefit of any other Person, ;
(mxv) 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 Member or any Affiliate of the 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 its separate existence and identity of the Borrower, identity;
(q) compensate its employees, if any, from its own funds for services provided to it, (rxvi) maintain adequate capitalization capital in light of its contemplated business purpose, transactions and operations, liabilities;
(sxvii) take cause its Board of Directors to keep minutes of any meetings and actions and observe all appropriate action necessary to maintain its existence as a other Delaware limited liability company formalities;
(xviii) not acquire any securities of its member;
(xix) act solely in good standing its own name and through its own authorized managers, directors, members, officers and agents, except as expressly permitted under the laws of the State of DelawareTransaction Documents; and
(xx) cause its directors, (t) observe strictly officers, agents and other representatives to act at all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions times with respect to its business Seller consistently and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy furtherance of the factual assumptions set forth foregoing and in the non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatmentSeller.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Kapstone Paper & Packaging Corp)
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books acknowledges that each Agent and records the Lender Parties are entering into this Agreement in reliance upon each Relevant Party’s identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure that after the records and books of Closing Date, the Borrower reflect the shall take all reasonable steps to maintain each Relevant Party’s identity as a separate existence of the Borrower and its assets, (b) separately identify and segregate its funds and assets legal entity from those of any 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 commingle its funds or assets with those permit any Subsidiary to:
(a) fail to hold all 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;
(b) except for payments made to a General Account governed by the terms of the Management Agreement, commingle its assets with the assets of any of its members, Affiliates, principals or any other Person;
(c) fail to maintain books, records and agreements as official records and separate from those of the members, principals and Affiliates or any other Person;
(d) engage in transactions and conduct all business activities in fail to maintain its own name and present itself to the public as a company bank accounts separate from its Memberthe members, Subsidiaries principals and all Affiliates of any other Persons (including by using its own signage, distinct stationery for written communications and distinct logos), Person;
(e) other than the Transaction Documents and as otherwise expressly permitted by Section 7.16, enter into any Affiliate Transaction;
(f) fail to maintain separate Financial Statements from those of its financial statementsgeneral partners, accounting recordsmembers, and other entity documents separate from principals, Affiliates or 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, Person; provided, however, that the Relevant Parties financial position, assets, liabilities, net worth and operating results of the Borrower may be included in the consolidated financial statements Financial Statements of its Affiliatesthe Sponsor, provided that (i) appropriate notation shall be made on such consolidated financial statements contain a footnote indicating Financial Statements to indicate the separateness of each Relevant Party and the Sponsor, to indicate that the Borrower is a separate legal entity, Sponsor and that it maintains each Relevant Party maintain separate books and records and to indicate that it has separate assets none of the Relevant Parties’ Assets and liabilities, credit are not available to satisfy the debts and other obligations of the Sponsor or any other Person and (fii) pay its own obligations such Assets 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 Borrowerbe listed on each Relevant Party’s liabilities or obligations, own separate balance sheet;
(g) not engage in fail to promptly correct any transaction with any Affiliate involving any intent to defraud any Person, known or suspected misunderstanding regarding its separate identity;
(h) except as provided maintain its Assets in the Servicing Agreementsuch a manner that it will be costly or difficult to segregate, maintain an arm’s-length relationship with and not be ascertain or become operationally dependent on identify its individual assets from those of any Affiliate, other Person;
(i) not assume or guaranty guarantee or become obligated obligated, or hold itself as responsible, for the debts of any other Person Person, except under any Holdco Guaranty and not Security Agreement or any Wholly Owned Opco Guaranty and Security Agreement;
(j) 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 except under any Holdco Guaranty and Security Agreement or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Wholly Owned Opco Guaranty and Security Agreement;
(k) allocate fairly and reasonably make any shared expenses includingloans or advances to any third party, without limitationincluding any member, shared office space and shall use separate and distinct stationeryprincipal or Affiliate of the Borrower, invoices and checksor any member, principal or Affiliate thereof, except as expressly permitted by the Loan Documents;
(l) except as otherwise expressly permitted by this Agreement, not 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 and identify itself as a separate division of any other Person or conduct any business in another name;
(n) fail to maintain adequate capital in light of its current and distinct entity under contemplated business operations;
(o) fail to act solely in its own limited liability company 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, of its officers and/or employees for travel and other ordinary course expenses), (o) not enter into or be a party to, any transaction with the Member or any Affiliate of the Borrower except in the ordinary course of its business their respective Affiliates, 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 at all times using its own funds for services provided to itstationery, (r) maintain adequate capitalization in light of its contemplated business invoices and operations, (s) take all appropriate action necessary to maintain its existence 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately checks separate from those of any other Person, any of its officers or any of their respective Affiliates;
(xp) ensure that the Borrower’s officers and Managers do notacquire obligations or securities of its members, in such capacities, act on behalf shareholders of other Persons and Affiliates, as applicable;
(yq) observe, follow and ensure the accuracy take any action that knowingly shall cause any Relevant Party to become insolvent;
(r) fail to keep minutes of the factual assumptions set forth actions of the member of any Relevant Party and observe all limited liability company and other organizational formalities;
(s) 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 non-consolidation opinion best interests of H▇▇▇▇▇ & B▇▇▇▇each Relevant Party;
(t) fail to pay its own liabilities and expenses (including, LLP dated on as applicable, shared personnel and 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 about [***] Confidential treatment has been requested for the Funding Date and referred to in Section 3.2(h)bracketed portions. *Information marked with an asterisk herein The confidential redacted portion has been omitted and filed separately with the Commission pursuant Securities and Exchange Commission.
(u) fail at any time to a request for confidential treatmenthave an independent director of the Borrower (as defined in the applicable limited liability company agreement of the Borrower).
Appears in 1 contract
Sources: Credit Agreement (Sunrun Inc.)
Separateness. The Borrower shall at take, and shall cause the Borrower General Partner to take, all times reasonable steps to maintain its identity as a separate legal entity and to make it manifest to third parties that each of the Borrower and the Borrower General Partner is an entity with assets and liabilities distinct from those of any Other CNL Company and not just a division of any Other CNL Company. Without limiting the generality of the foregoing, the Borrower shall, and shall cause the Borrower General Partner to:
(ai) conduct its business from an office separate from that of the Other CNL Companies (but which may be located in the same facility as one or more of the Other CNL Companies);
(ii) be adequately capitalized in light of its contemplated business;
(iii) provide for its own operating expenses and liabilities from its own funds except that common overhead expenses may be shared by the Borrower and the Other CNL Companies on a basis reasonably related to use;
(iv) maintain its bank accounts, assets and transactions separately from those of the Other CNL Companies and reflect such assets and transactions in financial statements separate and distinct from those of the Other CNL Companies and evidence such assets and transactions by appropriate entries in books 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 distinct from those of any other Person and shall not commingle its funds or assets with those of any other Person the Other CNL Companies;
(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), (cv) hold its assets in its own name, (d) engage in transactions and conduct all business activities in its own name and present itself out to the public under the Borrower's or the Borrower General Partner's (as applicable) own name as a company legal entity separate from its Member, Subsidiaries and all other Persons (including by using its own signage, distinct stationery for written communications and distinct logos)from the Other CNL Companies;
(vi) not hold itself out as having agreed to pay, (e) maintain its financial statementsor as being liable, accounting recordsprimarily or secondarily, and other entity documents separate from for, 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 obligations of the Borrower may be included in the consolidated financial statements Other CNL Companies;
(vii) not maintain any joint account with any Other CNL Company or become liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Other CNL Company;
(viii) not make any payment or distribution of assets with respect to any obligation of any Other CNL Company or grant an Adverse Claim on any of its Affiliatesassets to secure any obligation of any Other CNL Company;
(ix) not make loans, provided that such consolidated financial statements contain a footnote indicating that advances or otherwise extend credit to any of the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, Other CNL Companies;
(fx) pay its own obligations and liabilities out hold regular duly noticed meetings of its funds partners, make and assets retain minutes of such meetings and shall not permit other Persons otherwise observe all limited partnership formalities;
(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, (gxi) not engage in any transaction with any Affiliate involving any intent to defraud any Personof the Other CNL Companies, (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 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 (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 Member or any Affiliate of the 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 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 Agreement and as contemplated by applicable law the Loan Contribution Agreement and the Loan Sale Agreements; and
(including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (uxii) ensure that prepare its funds will be clearly traceable at each step in any financial transaction, (v) ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member statements separately from those of any of the Other CNL Companies and insure that any consolidated financial statements of any Other CNL Company that are filed with the Securities and Exchange Commission or any other Person, (x) ensure governmental agency or are furnished to any creditors of any Other CNL Company have notes clearly stating that the Borrower is the owner of the Loans and is a separate entity and that the Borrower’s officers 's assets will be available first and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure foremost to satisfy the accuracy claims of the factual assumptions creditors of the Borrower. The Servicer shall take, and shall cause each Other CNL Company to take, all actions necessary on its part in order to ensure compliance with the covenants set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, LLP dated on or about the Funding Date and referred to in this Section 3.2(h5.1(n). *Information marked with an asterisk herein has been omitted and filed separately with the Commission pursuant to a request for confidential treatment.
Appears in 1 contract
Sources: Loan and Security Agreement (CNL American Properties Fund Inc)
Separateness. The Borrower shall at all times (a) maintain its bank accounts, books and records acknowledges that the Lenders are entering into this Agreement in reliance upon the Borrower's identity as a legal entity that is separate from any other Person Person. Therefore, from and otherwise ensure after the date of this Agreement, the Borrower shall take all reasonable steps, including without limitation, all steps that the records Required Lenders may from time to time reasonably request, to maintain the Borrower's identity as a separate legal entity and books to make it manifest to third parties that the Borrower is a separate legal entity. Without limiting the generality of the foregoing, the Borrower reflect agrees that it has not and shall not (except as otherwise provided in the separate Credit Documents):
(a) fail to maintain its limited liability company existence and make independent decisions with respect to its daily operations and business affairs and, other than decisions of its member pursuant to the terms of the Borrower and its assetslimited liability company agreement of the Borrower, fail to not to be controlled in making such decisions by any Affiliate thereof or any other Person;
(b) separately identify 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 segregate its funds and assets from those of pay 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), taxes so required to be paid under applicable law;
(c) hold to the extent necessary for the operation of its assets in its own namebusiness, (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) engage in transactions and conduct all business activities in fail to pay its own name and present itself to the public as a company separate from its Member, Subsidiaries and all other Persons (including by using liabilities only out of 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, 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 LEGAL 4873-0998-8490v4881-9719-6460v.143 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) engage, either directly or indirectly, in any business or activity other than the acquisition, ownership, financing and disposition of the Receivables in accordance with the Credit Documents and activities incidental thereto;
(h) acquire or own any material asset other than the Collateral and proceeds thereof;
(i) 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 assets or change its legal structure, without in each case, to the extent permitted by law, the Administrative Agent's and the Required Lenders' consent;
(j) fail to preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its formation, or without the prior written consent of the Administrative Agent and the Required Lenders, amend, modify, change, repeal, terminate or fail to comply with the provisions of the Borrower's certificate of formation, or its limited liability company agreement, as the case may be;
(k) 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 LEGAL 4873-0998-8490v4881-9719-6460v.143 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 of the Borrower may be included in the consolidated financial statements of the Company and its Affiliates; provided, provided further, that such consolidated financial statements contain a footnote indicating disclose that the Borrower is a separate legal entity, entity and that it maintains separate books its assets are not generally available to satisfy the claims of creditors of the Company and records and that it has separate assets and liabilitiesits Affiliates;
(q) seek the dissolution or winding up, (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 in whole or in part, of the Borrower in accordance with or take any action that would cause the Servicing AgreementBorrower to become insolvent;
(r) fail to pay take reasonable efforts to correct any misunderstanding known to the Borrower regarding the separate identity of the Borrower’s liabilities ;
(s) maintain its assets in such a manner that it will be costly or obligationsdifficult to segregate, ascertain or identify its individual assets from those of any other Person;
(g) not engage in any transaction with any Affiliate involving any intent to defraud any Person, (ht) except as provided in the Servicing AgreementCredit Documents, 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 the debts of any other Person, hold itself out to be responsible for the debts of any other Person, or otherwise pledge its assets for the benefit of any other Person and not or hold out its credit as being available to satisfy the obligations of any other Person;
(u) except as provided in the Credit Documents, (j) not acquire the debt make any loans or securities advances to any third party, including any general partner, member, principal or Affiliate of the Member Borrower, or any general partner, member, principal or Affiliate thereof;
(v) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity 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 direct Borrower, or indirect owners any general partner, member, principal or Affiliate thereof);
(w) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations 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;
(x) file or consent to the filing of any petition, either voluntary or involuntary, to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors; LEGAL 4873-0998-8490v4881-9719-6460v.143
(y) hold itself out as or be considered as a department or division (other than for tax purposes) of any general partner, principal, member or Affiliate of the Borrower or the Borrower’s Affiliates, any other Person or entity;
(kz) fail to allocate fairly and reasonably any shared expenses (including, without limitation, shared office space and shall services performed by an employee of an Affiliate) among the Persons sharing such expenses and to use separate and distinct stationery, invoices and checks, ;
(laa) except as otherwise expressly permitted by this Agreement, 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 acquire obligations 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 Member or any Affiliate of the Borrower except in the ordinary course securities 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 partypartners, (p) promptly correct any known misunderstanding regarding the separate existence and identity of the Borrowermembers, (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 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 Agreement and by applicable law (including the Delaware Limited Liability Company Act)shareholders or other Affiliates, as the case may be, and keep accurate and proper books and records of account, (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 daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of H▇▇▇▇▇ & B▇▇▇▇, 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 a request for confidential treatment.applicable;
Appears in 1 contract
Separateness. The Each Borrower and Sole Member shall maintain its existence separate and distinct from any other Person. Without limiting the generality of the foregoing, except as expressly permitted pursuant to this Agreement, each Borrower and Sole Member shall:
(a) pay its debts and liabilities (including overhead expenses) from its own assets (to the extent available therefor) as the same shall become due;
(b) comply with its Organization Documents;
(c) conduct its business in its own name and strictly comply with all organizational formalities to maintain its separate existence;
(d) maintain its own separate books, records, and bank accounts, except as expressly otherwise allowed or required by the Loan Documents;
(e) maintain separate financial books and records, and to the extent delivered for a single Project, financial statements; provided, however, that a Borrower’s and the ▇▇▇▇-▇▇▇▇-▇▇▇▇\14 Sole Member’s assets may be included in a consolidated financial statement of its Affiliates provided that appropriate notation shall be made on such consolidated financial statements to indicate the separateness of the applicable entity and such Affiliates and to indicate that the Borrower’s and the Sole Member’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person.
(f) file its own tax returns (except to the extent consolidation is required under relevant tax law), and pay any taxes so required to be paid under applicable law and not permit Sole Member or any Borrower to be treated as a division for tax purposes of another taxpayer;
(g) at all times hold itself out to the public and all other Persons as a legal entity separate and distinct from any other entity, correct any known misunderstanding regarding such status, pay the salaries of its own employees, if any, when due and payable; although from a marketing standpoint, a Project may be disclosed as being associated with the CBL & Associates Properties, Inc., and CBL & Associates Management, Inc. may promote its services related to a Project using service marks that it uses to promote its services at other shopping center owned through affiliates of CBL & Associates Properties, Inc.;
(ah) maintain an arm’s length relationship with its Affiliates;
(i) maintain its bank accountsassets in such a manner that it will not be costly or difficult to segregate, books 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 ascertain or identify its assets, (b) separately identify and segregate its funds and individual assets from those of any of its Affiliates or any other Person Person;
(j) maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that the foregoing shall not commingle its funds require any direct or assets with those indirect member, partner or shareholder of a Borrower or Sole Member to make any other Person additional capital contributions to a Borrower or Sole Member;
(k) be an entity disregarded as a separate entity or treated as a partnership for federal income tax purposes and not make any election under Section 301.7701-3(a) of the regulations promulgated pursuant to the Code to be treated as an association taxable as a corporation for federal income tax purposes;
(l) engage only in the business and for the avoidance purposes set forth in Section 5.22 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), this Agreement (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 case of its Affiliates, provided that such consolidated financial statements contain a footnote indicating that each Borrower) or Section 7.18 of this Agreement (in the Borrower is a separate legal entity, and that it maintains separate books and records and that it has separate assets and liabilities, case of Sole Member);
(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, (gm) 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 guarantee or become obligated for the debts obligations of any other Person and not entity or hold out its credit as being available to satisfy the obligations of any other Personothers, except for the Loan and except as expressly permitted by the Loan Documents; ▇▇▇▇-▇▇▇▇-▇▇▇▇\14
(jn) not acquire the debt obligations or securities of its members or other Equity Interest holders, except as permitted by the Member or any of the direct or indirect owners of the Borrower or the Borrower’s Affiliates, Loan Documents;
(ko) allocate fairly and reasonably any shared expenses including, without limitation, shared office space and shall use separate and distinct stationerystationary, invoices and checks, or with respect to any communication on behalf of a Borrower or Sole Member by its property manager, CBL & Associates Management, Inc., be specifically identified therein;
(lp) except as otherwise expressly permitted by this Agreement, 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 make any other Person, (n) not make loans or advances to any Person (entity, except for de minimus cash advances to Managers, officers and/or employees for travel the loan evidenced by the Sole Member Promissory Note and other ordinary course expenses), (o) not enter into or be a party to, any transaction with except as permitted by the Member or any Affiliate of the 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, Loan Documents;
(q) compensate with respect to Sole Member (but not any Borrower) at all times have a duly appointed Independent Manager pursuant to its employeesOrganization Documents, if anyand such Organization Documents shall at all times include a requirement that the approval or consent of its Independent Manager shall be required to authorize such entity or to authorize any of its subsidiary Borrowers to: (i) file or consent to the filing of any bankruptcy, from its own funds for services provided insolvency or reorganization petition or proceeding with respect to it, or otherwise institute any proceeding or seek any relief under the Bankruptcy Code or any other Debtor Relief Law with respect to it; (ii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for itself or a substantial portion of its Property; (iii) make any assignment for the benefit of creditors with respect to itself; (iv) admit in writing its inability to pay its debts generally as they become due, provided, that the delivery of the budgets provided for in Section 6.22 shall not in itself constitute an admission of inability to pay its debts; (v) be dissolved or liquidated; (vi) sell all or substantially all of its Property or any Project; or (vii) take any limited liability company or trust action in furtherance of any such action described in clauses (i) through (v) above.
(r) maintain adequate capitalization in light with respect to each Borrower, it shall at all times include a requirement that the approval or consent of its contemplated business and operationsSole Member (including the approval of the Independent Manager of its Sole Member) shall be required to authorize such entity to: (i) file or consent to the filing of any bankruptcy, insolvency or reorganization petition or proceeding with respect to it, or otherwise institute any proceeding or seek any relief under the Bankruptcy Code or any other Debtor Relief Law with respect to it; (sii) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for itself or a substantial portion of its Property; (iii) make any assignment for the benefit of creditors with respect to itself; (iv) admit in writing its inability to pay its debts generally as they become due, provided, that the delivery of the budgets provided for in Section 6.22 shall not in itself constitute an admission of inability to pay its debts; (v) be dissolved or liquidated; (vi) sell all or substantially all of its Property or any Project; or (vii) take all appropriate action necessary to maintain its existence as a any limited liability company or trust action in good standing under the laws furtherance of the State of Delaware, any such action described in clauses (ti) observe strictly all limited liability company, organizational and procedural matters and formalities required by this Agreement and by applicable law (including the Delaware Limited Liability Company Act), as the case may be, and keep accurate and proper books and records of account, (u) ensure that its funds will be clearly traceable at each step in any financial transaction, through (v) ensure that decisions with respect to its business and daily operations have been duly authorized in accordance with the Borrower LLC Agreement, (w) hold any meetings of its Managers and/or its Member separately from those of any other Person, (x) ensure that the Borrower’s officers and Managers do not, in such capacities, act on behalf of other Persons and (y) observe, follow and ensure the accuracy of the factual assumptions set forth in the non-consolidation opinion of Habove. ▇▇▇▇▇ & B-▇▇▇▇, 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 a request for confidential treatment.-▇▇▇▇\14
Appears in 1 contract