Nonconsolidation Clause Samples
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Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate ...
Nonconsolidation. The Seller is and at all times since its incorporation has been operated in such a manner that it would not be substantively consolidated with the Originator or the Issuer and such that the separate existence of any of the Originator, the Seller or the Issuer would not be disregarded in the event of a bankruptcy or insolvency of the Seller or the Issuer, and in such regard:
(a) the Seller is not involved in the day-to-day management of the Originator or the Issuer;
(b) the Seller maintains separate corporate records and books of account from the Originator and the Issuer and otherwise observes corporate formalities and has a separate business office from the Originator and the Issuer;
(c) the financial statements and books and records of the Seller prepared after the Issuance Date will reflect the separate existence of the Originator and the Issuer;
(d) the Seller maintains its assets separately from the assets of the Originator and the Issuer (including through the maintenance of a separate bank account), the Seller's funds and assets, and records relating thereto, have not been and are not commingled with those of the Originator or the Issuer and the separate creditors of the Originator and the Issuer will be entitled to be satisfied out of the Originator's and the Issuer's respective assets prior to any value in the Originator or the Issuer becoming available to the Originator's or the Issuer's equityholders or the Seller's creditors;
(e) all business correspondence of the Seller and other communications are conducted in the Seller's own name and on its own stationery; and
(f) neither the Originator nor the Issuer acts as an agent of the Seller in any capacity and the Seller does not act as agent for the Originator or the Issuer, but instead presents itself to the public as a corporation separate from the Originator and the Issuer.
Nonconsolidation. The Depositor has taken and will continue to take all actions required to maintain the Issuer’s status as a separate legal entity, including, without limitation, (1) not holding the Issuer out to third parties as other than an entity with assets and liabilities distinct from the Depositor and the Depositor’s other Subsidiaries; (2) other than by reason of owning the residual interest of the Issuer, not holding itself out to be responsible for any decisions or actions relating to the Issuer (except for decisions or actions as Certificateholder); (3) preparing unaudited separate financial statements for the Issuer (which may be consolidated with the Depositor); (4) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Issuer’s certificate of formation and limited liability company agreement, and certificate of trust and Trust Agreement, respectively, are duly and validly taken; (5) keeping correct and complete records and books of account and corporate minutes; and (6) not acting in any manner that could foreseeably materially mislead others with respect to the Issuer’s separate identity. In addition to the foregoing, the Depositor has taken and will continue to take all necessary actions so that:
(i) the Depositor shall maintain records and books of account and minutes separate from those of the Issuer;
(ii) the Depositor shall maintain an arm’s-length relationship with the Issuer and shall not hold itself out as being liable for any Indebtedness of the Issuer (other than certain indemnification obligations of the Issuer provided herein);
(iii) the Depositor shall keep its assets and its liabilities wholly separate from those of the Issuer (except with respect to any commingled Collections to the extent permitted under this Agreement or the Indenture);
(iv) the Depositor shall at all times limit its transactions with the Issuer only to those expressly permitted hereunder or under any other Transaction Document; and
(v) the Depositor shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Depositor contained in the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP delivered pursuant to the terms of the Transaction Documents.
Nonconsolidation. The Seller conducts its affairs such that the Trust Depositor would not be substantively consolidated in the estate of the Seller and their respective separate existences would not be disregarded in the event of the Seller’s bankruptcy.
Nonconsolidation. The Originator has taken and will continue to take all actions required to maintain the SPV’s status as a separate legal entity, including, without limitation, (i) not holding the SPV out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; (ii) other than by reason of owning capital stock of the SPV, not holding itself out to be responsible for any decisions or actions relating to the SPV (except for decisions or actions as shareholders); (iii) preparing unaudited separate financial statements for the SPV (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the SPV’s respective certificates of incorporation and by-laws are duly and validly taken; (v) keeping correct and complete records and books of account and corporate minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the SPV’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the SPV;
(B) the Originator shall maintain an arm’s-length relationship with the SPV and shall not hold itself out as being liable for any Indebtedness of the SPV (other than certain indemnification obligations of the SPV provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the SPV (except with respect to any commingled Collections to the extent permitted under the Second Tier Agreement);
(D) the Originator shall at all times limit its transactions with the SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC delivered pursuant to Section 4.1(k) of the Second Tier Agreement.
Nonconsolidation. The Transferor is operated in such a manner that it would not be substantively consolidated with the Contributor, such that the separate existence of the Transferor and the Contributor would not be disregarded in the event of a bankruptcy or insolvency of the Transferor or the Contributor, and in such regard, among other things:
(a) the Transferor is not involved in the day to day management of the Contributor;
(b) the Transferor maintains separate Transferor records and books of account from the Contributor and otherwise observes Transferor formalities and has a separate business office from the Contributor;
(c) the financial statements and books and records of the Transferor prepared after the date of creation of the Contributor reflect and will reflect the separate existence of the Contributor;
(d) the Transferor maintains its assets separately from the assets of the Contributor (including through the maintenance of a separate bank account), the Transferor's funds and assets, and records relating thereto, have not been and are not commingled with those of the Contributor and the separate creditors of the Contributor will be entitled to be satisfied out of the Contributor's assets prior to any value in the Contributor becoming available to the Contributor's equityholders or the Transferor's creditors;
(e) all business correspondence of the Transferor and other communications are conducted in the Transferor's own name and on its own stationery;
(f) the Contributor does not act as an agent of the Transferor in any capacity and the Transferor does not act as agent for the Contributor, but instead presents itself to the public as a corporation separate from the Contributor; PROVIDED that the Contributor is the Servicer hereunder; and
(g) the Transferor will at all times maintain two Independent Directors (as such term is defined in the certificate of incorporation of the Transferor).
Nonconsolidation. The Trust Depositor conducts its affairs such that the Issuer would not be substantively consolidated in the estate of the Trust Depositor and their respective separate existences would not be disregarded in the event of the Trust Depositor’s bankruptcy.
Nonconsolidation. The Transferor conducts, and will at all times conduct, its affairs such that neither the Retention Holder nor the Issuer would be substantively consolidated in the estate of the Transferor and their respective separate existences would not be disregarded in the event of a bankruptcy of the Transferor (provided, however, the Transferor does not hereby agree to maintain the solvency of the Retention Holder or of the Issuer).
Nonconsolidation. The Seller will operate in such a manner that the separate corporate existence of (A) the Seller and (B) the Seller Entities and each Affiliate thereof would not be disregarded in the event of the bankruptcy or insolvency of any Seller Entity or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the Seller will not engage in any activity other than those activities expressly permitted under the Seller's organizational documents and the Transaction Documents, nor will the Seller enter into any agreement other than this Agreement, the other Transaction Documents to which it is a party and, with the prior written consent of the Agent, any other agreement necessary to carryout more effectively the provisions and purposes hereof or thereof;
(ii) the Seller will maintain a business office separate from that of each of the Seller Entities and the Affiliates thereof;
(iii) the Seller will cause the financial statements and books and records of the Seller and each Seller Entity and any Affiliate thereof to reflect the separate corporate existence of the Seller;
(iv) except as otherwise expressly permitted hereunder, under the other Transaction Documents and under the Seller's organizational documents, the Seller will not permit any Seller Entity or Affiliate thereof to (A) pay the Seller's expenses, (B) guarantee the Seller's obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise other than as a capital contribution; and
(v) the Seller will not act as agent for any Seller Entity or Affiliate thereof, but instead will present itself to the public as a corporation separate from each such Person and independently engaged in the business of purchasing and financing Receivables.
Nonconsolidation. The Seller is operated in such a manner that the separate legal existence of the Seller, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Seller is a limited purpose limited liability company whose activities are restricted in its certificate of formation and limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Seller has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Required Purchasers and the Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) no member of the Parent Group or any individual at the time he or she is acting as an officer of any such member is or has been involved in the day-to-day management of the Seller;
(iii) other than the purchase and acceptance through capital contribution of Transferred Receivables, the payment of dividends and the return of capital to the Originators, the payment of Servicing Fees to the Servicer under this Agreement and the transactions evidenced by the Ancillary Services and Lease Agreement, the Seller engages and has engaged in no inter-entity transactions with any member of the Parent Group;
(iv) the Seller maintains limited liability company records and books of account separate from that of each member of the Parent Group, holds regular limited liability company meetings and otherwise observes limited liability company formalities and has a business office separate from that of each member of the Parent Group;
(v) the financial statements and books and records of the Seller and the Originators reflect the separate legal existence of the Seller;
(A) the Seller maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) the Seller's funds (including all money, checks and other cash pro...