Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall: (a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate; (b) conduct all transactions with Affiliates on an arm’s length basis; (c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company; (d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate; (e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company; (f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee; (g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement; (h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds; (i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager; (j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager; (k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein; (l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital; (m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate; (n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law; (o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions; (p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company); (q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member; (r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company; (s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom; (t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents; (u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate; (v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company; (w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents; (x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company; (y) treat and cause the Member to treat the transfer of the System Restoration Property from the Member to the Company as a sale under the Securitization Act; (z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person; (aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes; (bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities; (cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law; (dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require; (ee) not form, or cause to be formed, any subsidiaries; (ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 7 contracts
Sources: Limited Liability Company Agreement (Centerpoint Energy Houston Electric LLC), Limited Liability Company Agreement (Centerpoint Energy Houston Electric LLC), Limited Liability Company Agreement (Centerpoint Energy Houston Electric LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization ActStorm Recovery Law;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 7 contracts
Sources: Limited Liability Company Agreement (Duke Energy Progress SC Storm Funding LLC), Limited Liability Company Agreement (Duke Energy Progress SC Storm Funding LLC), Limited Liability Company Agreement (Duke Energy Progress SC Storm Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the any Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Recovery Property transferred to the Company pursuant to the any Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Recovery Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as indebtedness of Utility Holding the Member secured by the Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 5 contracts
Sources: Limited Liability Company Agreement (PG&E Recovery Funding LLC), Limited Liability Company Agreement (PG&E Wildfire Recovery Funding LLC), Limited Liability Company Agreement (PACIFIC GAS & ELECTRIC Co)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHEEvergy Missouri West, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitized Utility Tariff Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitized Utility Tariff Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as indebtedness of Utility Holding the Member secured by the Securitized Utility Tariff Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Evergy Missouri West Storm Funding I, LLC), Limited Liability Company Agreement (Evergy Missouri West Storm Funding I, LLC), Limited Liability Company Agreement (Evergy Missouri West Storm Funding I, LLC)
Separate Existence. Except The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity (until dissolution under Section 9.02) and, except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that (a) the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that (b) the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit or assets of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture TrusteeTrustee upon request;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing AgreementAgreement in each case with respect to the Storm Recovery Bonds;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, consultants and agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member Member, any Affiliate or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member Member, any Affiliate or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsor applicable law;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberAffiliate;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate Affiliate, and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana (until dissolution under Section 9.02) and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(gg) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Operating Agreement (SWEPCO Storm Recovery Funding LLC), Limited Liability Company Operating Agreement (SWEPCO Storm Recovery Funding LLC), Limited Liability Company Operating Agreement (SWEPCO Storm Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) maintain a separate telephone number;
(c) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Recovery Property from the Member to the Company as a sale under the Securitization ActLaw;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as indebtedness of Utility Holding the Member secured by the Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (SCE Recovery Funding LLC), Limited Liability Company Agreement (SCE Recovery Funding LLC), Limited Liability Company Agreement (SCE Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or and any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) allocate fairly and reasonably any overhead for shared office space;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on a basis consistent with an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the other Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any of its other Affiliates or any other Person) to which no Affiliate has any access (except CEHE, Consumers Energy in its capacity as Servicer and Administrator) has any accessServicer, Administrator or Sponsor), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee);
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member of its other Affiliates or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member of its other Affiliates or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and agents, hold the Company out as an entity separate from any Affiliate and cause all actions taken on behalf of the Company by individuals who are both Managers or officers of the Company and officers, directors or employees of the Member or any of its other Affiliates to be taken solely in the name and on behalf of the Company, and not in the name or on behalf of the Member or any such other Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
Member (r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to other than the Company);
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitization Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitization Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aa) so long as any of the Securitization Bonds are Outstandingoutstanding, treat the Securitization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Securitization Bonds are Outstandingoutstanding, treat the Securitization Bonds as indebtedness of Utility Holding the Member secured by the Securitization Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;; and
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Consumers Energy Co), Limited Liability Company Agreement (Consumers Energy Co), Limited Liability Company Agreement (Consumers 2014 Securitization Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHECEI South, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitization Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitization Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
; (aa) so long as any of the Securitization Bonds are Outstanding, treat the Securitization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (SIGECO Securitization I, LLC), Limited Liability Company Agreement (SIGECO Securitization I, LLC), Limited Liability Company Agreement (SIGECO Securitization I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principlesGAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Sole Member and the Managers Management Committee shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Sole Member, Affiliates of the Sole Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain in full effect its existence, rights and franchises as a limited liability company under the assets laws of the Company State of Delaware and obtain and preserve its qualification to do business in each jurisdiction in which such a manner that it qualification is not costly or difficult shall be necessary to segregate, identify protect the validity and enforceability of this Agreement and each other instrument or ascertain its individual assets from those of any other Person, including any Affiliateagreement necessary or appropriate to the proper administration hereof and to permit and effectuate the undertakings contemplated hereby;
(b) hold itself out to the public and all third Persons as a legal entity separate from the Sole Member and any other Person at all times, and correct any known misunderstandings regarding its separate identity;
(c) maintain a separate telephone number;
(d) maintain its own deposit and securities accounts separate from those of any Affiliate or other Person, and as to which no Affiliate has access;
(e) maintain an arm’s length relationship with Affiliates, including each member of the FirstEnergy Affiliated Group and conduct all transactions with Affiliates on an arm’s length basis;
(cf) ensure that, to the extent that it shares the same officers or other employees with the Sole Member or any other Affiliate, the salaries of, and the expenses related to providing benefits to, such officers and other employees shall be fairly and reasonably allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;
(g) pay its own liabilities out of its own funds, including fees and expenses of the administrator pursuant to the Administration Agreement and the servicer pursuant to any Servicing Agreement, and ensure that, to the extent that it jointly contracts with the Sole Member or any other Affiliate to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly and reasonably among such entities, and each such entity shall bear its fair share of such costs;
(h) maintain a principal executive and administrative office through which its business is conducted separate from those of the Sole Member, any member of the FirstEnergy Affiliated Group or any other Affiliate. To the extent that the Company and the Sole Member or any other Affiliate have offices in contiguous space, the Company’s office space shall be separate and clearly delineated from the office space of any such Affiliate and there shall be fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(i) observe all necessary, appropriate and customary formalities, including holding all regular and special meetings, including meetings of the Management Committee, appropriate to authorize all action on behalf of the Company, keeping all resolutions or consents necessary to authorize actions taken or to be taken (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise), and maintaining accurate and separate books, records (financial or other), accounts and minutes (of actions of Members and Directors), including payroll and intercompany transaction accounts;
(j) maintain financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with GAAP and audited annually by an independent accounting firm which shall provide such audit to the Bond Trustee under the Bond Indenture;
(k) cause to have prepared and filed 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(l) at all times vest the management of the Company in the Management Committee and, from and after the entry into the Purchase and Sale Agreement and the acquisition of the Phase-In-Recovery Property, ensure that its Management Committee shall at all times include at least two Independent Directors;
(m) refrain from commingling its assets with those of the Sole Member or any member of the FirstEnergy Affiliated Group, except as permitted hereunder or under any of the Basic Documents, and maintain its assets in such a manner that is not costly or difficult to segregate or determine its assets from those of any other Person including any Affiliate;
(n) refrain from making any loan or advance to, pledging assets for the benefit of, or acquiring any obligations or securities of any Person, including the Sole Member, except as permitted hereunder or under any of the Basic Documents;
(o) conduct business solely in its own name through the Company’s Directors, Officers and agents, and no Affiliate shall be appointed to act as agent of the Company, except as expressly contemplated by the Basic Documents; and not permit any Affiliate to acquire obligations of, or make loans or advances to, the Company except as permitted under the Basic Documents;
(p) not guarantee, become obligated for or pay the debts of any Affiliate Affiliate, including any member of the FirstEnergy Affiliated Group, or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or any other Person (noror, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), noror, except as contemplated in the Basic Documents, have permit the Sole Member or any other Affiliate to become liable for, guarantee or pay the debts of the Company or permit any such Person to hold out its obligations guaranteed by creditworthiness as being available to pay the liabilities or expenses of the Company or indemnify any Affiliate Person for losses resulting therefrom, or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor or seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor or allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lq) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nr) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(os) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefromdocuments;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the all Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yv) treat and cause the Sole Member to treat the transfer of the System Restoration Phase-In-Recovery Property from the Sole Member to the Company as a sale under the Securitization ActStatute;
(zw) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aax) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bby) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding the Sole Member secured by the Bond Phase-In-Recovery Property Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffz) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; (aa) disclose, and cause the Sole Member to disclose, in its financial statements the effects of all transactions between the Sole Member and the Company in accordance with GAAP, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the Phase-In-Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (ggiii) cause neither the Sole Member to observe nor any other Affiliate is liable or responsible for the debts of the Company; and
(bb) comply with all restrictions on its business and operations as set forth in all material respects all limited liability company procedures Sections 2.5 and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions2.7. Failure of the Company, or the Sole Member or any Manager Management Committee on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Sole Member or the ManagersDirectors.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (OE Funding LLC), Limited Liability Company Agreement (OE Funding LLC), Limited Liability Company Agreement (OE Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for U.S. federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all reasonable steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of of, borrow money or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization ActStorm Recovery Law;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Bond Storm Recovery Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Duke Energy Progress NC Storm Funding II LLC), Limited Liability Company Agreement (Duke Energy Progress NC Storm Funding II LLC), Limited Liability Company Agreement (Duke Energy Carolinas NC Storm Funding II LLC)
Separate Existence. Except The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity (until dissolution under Section 9.02) and, except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that (a) the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that (b) the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit or assets of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture TrusteeTrustee under each Indenture then in effect;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator an administrator pursuant to the an Administration Agreement and the a Servicer pursuant to a Servicing Agreement in each case with respect to the Servicing Agreementapplicable Series of Storm Recovery Bonds;
(hi) not hire or maintain any employees, but shall compensate at prudent and reasonable levels (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds, and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member Member, any Affiliate or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member Member, any Affiliate or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsor applicable law;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberAffiliate;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the a Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate Affiliate, and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any Series of the Storm Recovery Bonds are Outstandingoutstanding, treat the such Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any Series of the Storm Recovery Bonds are Outstandingoutstanding, treat the such Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the applicable Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana (until dissolution under Section 9.02) and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(gghh) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Operating Agreement (Cleco Power LLC), Limited Liability Company Operating Agreement (Cleco Power LLC), Limited Liability Company Operating Agreement (Cleco Power LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for U.S. federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or and any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the other Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, Consumers Energy in its capacity as Servicer and AdministratorServicer, Administrator or Sponsor) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable U.S. federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member Member, any of its Affiliates or any Manager;
(j) allocate fairly and reasonably any overhead for shared with the Member, any Special Member or any Manageroffice space;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and agents, hold the Company out as an entity separate from any Affiliate and cause all actions taken on behalf of the Company by individuals who are both Managers or officers of the Company and officers, directors or employees of the Member or any of its other Affiliates to be taken solely in the name and on behalf of the Company, and not in the name or on behalf of the Member or any such other Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitization Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitization Property from the Member to the Company as a sale under the Securitization ActStatute;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aa) so long as any of the Securitization Bonds are Outstandingoutstanding, treat the Securitization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Securitization Bonds are Outstandingoutstanding, treat the Securitization Bonds as indebtedness of Utility Holding the Member secured by the Securitization Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 3 contracts
Sources: Limited Liability Company Agreement (Consumers 2023 Securitization Funding LLC), Limited Liability Company Agreement (Consumers 2023 Securitization Funding LLC), Limited Liability Company Agreement (Consumers 2023 Securitization Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps actions necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of the Member, any of the Affiliates of the Company Member or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, including all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm whichfirm, upon written request, which shall provide such audit to the Indenture Trustee (upon the Indenture Trustee’s request);
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and of the Servicer pursuant to the Servicing Agreement;
(hi) not hire or maintain any employeesemployees other than the officers of the Company, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers of the Company or managers Managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, ; provided that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member Member, the Managers and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state the State of formation and all other appropriate jurisdictionsDelaware;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company, except as otherwise expressly provided in the Basic Documents;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, agreements and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale AgreementDeferred Fuel Cost Property) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Deferred Fuel Cost Property from the Member to the Company as a sale under the Securitization ActDeferred Fuel Cost Statute;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Deferred Fuel Cost Bonds are Outstanding, treat the Deferred Fuel Cost Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Deferred Fuel Cost Bonds are Outstanding, treat the Deferred Fuel Cost Bonds as indebtedness of Utility Holding the Member secured by the Bond Deferred Fuel Cost Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the any Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the any Member or the ManagersManager.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Virginia Power Fuel Securitization, LLC), Limited Liability Company Agreement (Virginia Power Fuel Securitization, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principlesGAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Sole Member and the Managers Management Committee shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Sole Member, Affiliates of the Sole Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain in full effect its existence, rights and franchises as a limited liability company under the assets laws of the Company State of Delaware and obtain and preserve its qualification to do business in each jurisdiction in which such a manner that it qualification is not costly or difficult shall be necessary to segregate, identify protect the validity and enforceability of this Agreement and each other instrument or ascertain its individual assets from those of any other Person, including any Affiliateagreement necessary or appropriate to the proper administration hereof and to permit and effectuate the undertakings contemplated hereby;
(b) hold itself out to the public and all third Persons as a legal entity separate from the Sole Member and any other Person at all times, and correct any known misunderstandings regarding its separate identity;
(c) maintain a separate telephone number;
(d) maintain its own deposit and securities accounts separate from those of any Affiliate or other Person, and as to which no Affiliate has access;
(e) maintain an arm’s length relationship with Affiliates, including each member of the FirstEnergy Affiliated Group and conduct all transactions with Affiliates on an arm’s length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ig) allocate pay its own liabilities out of its own funds, including fees and expenses of the administrator pursuant to the Administration Agreement and the servicer pursuant to any Servicing Agreement, and ensure that, to the extent that it jointly contracts with the Sole Member or any other Affiliate to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly and reasonably among such entities, and each such entity shall bear its fair share of such costs;
(h) maintain a principal executive and administrative office through which its business is conducted separate from those of the salaries of and the expenses related to providing the benefits of officers or managers shared with the Sole Member, any Special member of the FirstEnergy Affiliated Group or any other Affiliate. To the extent that the Company and the Sole Member or any Managerother Affiliate have offices in contiguous space, the Company’s office space shall be separate and clearly delineated from the office space of any such Affiliate and there shall be fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(ji) allocate fairly observe all necessary, appropriate and reasonably any overhead shared with customary formalities, including holding all regular and special meetings, including meetings of the MemberManagement Committee, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or appropriate to authorize all action on behalf of the Company’s allocable share of any such amounts provided by one , keeping all resolutions or more other Affiliates) and not have such operating expenses consents necessary to authorize actions taken or to be taken (including, all resolutions, records, agreements or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise), and maintaining accurate and separate books, records (financial or other), accounts and minutes (of actions of Members and Directors), including payroll and intercompany transaction accounts;
(j) maintain financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with GAAP and audited annually by an independent accounting firm which shall provide such audit to the Bond Trustee under the Bond Indenture;
(k) cause to have prepared and filed its own tax returns, if any, as provided thereinmay 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(l) at all times vest the management of the Company in the Management Committee and, from and after the entry into the Purchase and Sale Agreement and the acquisition of the Phase-In-Recovery Property, ensure that its Management Committee shall at all times include at least two Independent Directors;
(m) refrain from commingling its assets with those of the Sole Member or any member of the FirstEnergy Affiliated Group, except as permitted hereunder or under any of the Basic Documents, and maintain its assets in such a manner that is not costly or difficult to segregate or determine its assets from those of any other Person including any Affiliate;
(n) refrain from making any loan or advance to, pledging assets for the benefit of, or acquiring any obligations or securities of any Person, including the Sole Member, except as permitted hereunder or under any of the Basic Documents;
(o) conduct business solely in its own name through the Company’s Directors, Officers and agents, and no Affiliate shall be appointed to act as agent of the Company, except as expressly contemplated by the Basic Documents; and not permit any Affiliate to acquire obligations of, or make loans or advances to, the Company except as permitted under the Basic Documents;
(p) not guarantee, become obligated for or pay the debts of any Affiliate, including any member of the FirstEnergy Affiliated Group, or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or any other Person (or, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), or, except as contemplated in the Basic Documents, permit the Sole Member or any other Affiliate to become liable for, guarantee or pay the debts of the Company or permit any such Person to hold out its creditworthiness as being available to pay the liabilities or expenses of the Company or indemnify any Person for losses resulting therefrom, or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, or seek or obtain credit or incur any obligation to any third Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e. other than based on the assets of the Company) or allow any Affiliate to do such things based on the credit of the Company;
(q) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nr) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(os) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefromdocuments;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the all Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yv) treat and cause the Sole Member to treat the transfer of the System Restoration Phase-In-Recovery Property from the Sole Member to the Company as a sale under the Securitization ActStatute;
(zw) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aax) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bby) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding the Sole Member secured by the Bond Phase-In-Recovery Property Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffz) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; (aa) disclose, and cause the Sole Member to disclose, in its financial statements the effects of all transactions between the Sole Member and the Company in accordance with GAAP, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the Phase-In-Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (ggiii) cause neither the Sole Member to observe nor any other Affiliate is liable or responsible for the debts of the Company; and
(bb) comply with all restrictions on its business and operations as set forth in all material respects all limited liability company procedures Sections 2.5 and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions2.7. Failure of the Company, or the Sole Member or any Manager Management Committee on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Sole Member or the ManagersDirectors.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (FirstEnergy Ohio PIRB Special Purpose Trust 2013), Limited Liability Company Agreement (FirstEnergy Ohio PIRB Special Purpose Trust 2013)
Separate Existence. Except for financial reporting purposes (a) The Borrower shall conduct its business solely in its own name through its duly authorized officers or agents so as not to the extent required by generally accepted accounting principles) and for federal income tax purposes and, mislead others as to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity with which such persons are concerned, and shall use its best efforts to make avoid the appearance that it apparent to third Persons is conducting business on behalf of any Affiliate thereof or that the Company is an entity with assets of the Borrower are available to pay the creditors of any of its equityholders or any Affiliate thereof.
(b) It shall maintain records and liabilities distinct books of account separate from those of the Member, Affiliates of the Member or any other Person, .
(c) It shall pay its own operating expenses and that liabilities from its own funds.
(d) It shall not hold itself out as being liable for the Company is not a division debts of any of the Affiliates of the Company or any other Person. In that regardIt shall not pledge its assets to secure the obligations of any other Person. It shall not guarantee any obligation of any Person, and without limiting including any Affiliate or become obligated for the foregoing in debts of any manner, other Person or hold out its credit or assets as being available to pay the Company shall:obligations of any other Person.
(ae) maintain the It shall keep its assets and liabilities separate from those of all other entities. Except as expressly contemplated herein with respect to Excluded Amounts, it shall not commingle its assets with assets of any other Person.
(f) It shall maintain bank accounts or other depository accounts separate from any other person or entity, including any Affiliate.
(g) To the Company extent required under GAAP, it shall ensure that any consolidated financial statements including the Borrower, 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.
(h) It shall not amend, supplement or otherwise modify its organizational documents (as defined therein), except in such accordance therewith and with the prior written consent of the Facility Agent (which consent shall not be unreasonably withheld, delayed or conditioned).
(i) It shall at all times hold itself out to the public and all other Persons as a manner that it is not costly or difficult to segregatelegal entity separate from its member and from any other Person (other than, identify or ascertain if applicable, for U.S. federal income tax purposes).
(j) It shall file its individual assets own tax returns separate from those of any other Person, including any Affiliate;if and to the extent required to file tax returns under Applicable Law, except to the extent that it is treated as a “disregarded entity” for tax purposes and is not required to file tax returns under Applicable Law.
(bk) It shall conduct its business only in its own name and comply with all transactions with Affiliates on an arm’s length basis;organizational formalities necessary to maintain its separate existence.
(cl) not guaranteeIt shall maintain separate financial statements, become obligated for or pay the debts showing its assets and liabilities separate and apart from those of any other Person and not have its assets listed on any financial statement of any other Person; provided, that its assets may be included in a consolidated financial statement of its Affiliate or hold the so long as (i) appropriate notation shall be made on such consolidated financial statements (if any) to indicate its separateness from such Affiliate and to indicate that its assets and credit of the Company out as being are not available to satisfy the debts and other obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any such Affiliate or any other Person and (i.e.ii) such assets shall also be listed on its own separate balance sheet.
(m) It shall not, except for capital contributions or capital distributions permitted under the terms and conditions of its organizational documents and properly reflected on its books and records, 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.
(n) It shall maintain a sufficient number of employees (which number may be zero) in light of its contemplated business purpose and pay the salaries of its own employees, if any, only from its own funds.
(o) It shall use separate invoices bearing its own name.
(p) It shall correct any known misunderstanding regarding its separate identity and not identify itself as a department or division of any other Person.
(q) It shall maintain adequate capital in light of its contemplated business purpose, transactions and liabilities; provided, however, that the foregoing shall not require its equityholders to make additional capital contributions.
(r) It shall not acquire any obligation or securities of its members or of any Affiliate other than based on the assets of Collateral in compliance with the Company) nor allow any Affiliate to do such things based on the credit of the Company;Transaction Documents.
(ds) It shall not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that it may invest in those investments permitted under the Transaction Documents and may hold the equity of REO Asset Owners.
(t) It shall not, to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, sale or transfer of all or substantially all of its assets and such activities as are expressly permitted pursuant to the Transaction Documents.
(u) It shall not buy or hold evidence of indebtedness issued by any other Person (other than cash or investment-grade securities), except as expressly otherwise permitted hereunder or under any of contemplated by the Basic Transaction Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;.
(ev) maintain separate deposit and other bank accounts and funds Except as expressly permitted by the Transaction Documents (separately identifiable from those which permits, for the avoidance of doubt, the Member formation of REO Asset Owners), it shall not form, acquire or hold any other Person) to which no Affiliate subsidiary (except CEHEwhether corporate, in its capacity as Servicer and Administrator) has any accesspartnership, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial limited liability company or other) and financial statements separate from those of its Affiliates or own any equity interest in any other Person, prepared entity.
(w) It shall not own any asset or property other than Collateral and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated such other financial assets as permitted by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;Transaction Documents.
(gx) pay its own liabilities out of its own fundsIt shall not engage, including fees and expenses of directly or indirectly, in any business other than as required or permitted to be performed by the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;Transaction Documents.
(hy) not hire or maintain any employees, but It shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead expenses that are shared with the Member, any Special Member or any Manager;
(k) pay from of its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company including for shared office space and certain of the expenses related to the transactions contemplated for services performed by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Property from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Loan Financing and Servicing Agreement (Oaktree Specialty Lending Corp), Loan Financing and Servicing Agreement (Oaktree Strategic Income Corp)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets assets, liabilities and liabilities financial accounts distinct from those of the Member, Affiliates of the Member Member, the Managers or any other Person, and that that, the Company is not a division of any of the Member, Affiliates of the Company Member, the Company’s Affiliates or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator (as defined in the Administration Agreement) pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own fundsfunds and maintain a sufficient number of employees in light of its contemplated operations;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital, provided, however, the foregoing shall not require the Member to make any additional capital contributions to the Company;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Rate Stabilization Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Rate Stabilization Property from the Member to the Company as a sale under the Securitization ActRate Stabilization Law;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Rate Stabilization Bonds are Outstandingoutstanding, treat the Rate Stabilization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory reporting or tax purposespurposes or as required under the Public Utility Holding Company Act of 2005 and the Federal Power Act;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Rate Stabilization Bonds are Outstandingoutstanding, treat the Rate Stabilization Bonds as indebtedness of Utility Holding the Member secured by the Rate Stabilization Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (RSB Bondco LLC), Limited Liability Company Agreement (RSB Bondco LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, DTE Electric in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable U.S. federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitization Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitization Property from the Member to the Company as a sale under the Securitization ActStatute;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
; (aa) so long as any of the Securitization Bonds are Outstanding, treat the Securitization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (DTE Electric Securitization Funding II LLC), Limited Liability Company Agreement (DTE Electric Securitization Funding II LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHEKGS, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitized Utility Tariff Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitized Utility Tariff Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
; (aa) so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Kansas Gas Service Securitization I, L.L.C.), Limited Liability Company Agreement (Kansas Gas Service Securitization I, L.L.C.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration CRR Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration CRR Property from the Member to the Company as a sale under the Securitization ActLaw;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Consumer Rate Relief Bonds are Outstandingoutstanding, treat the Consumer Rate Relief Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Consumer Rate Relief Bonds are Outstandingoutstanding, treat the Consumer Rate Relief Bonds as indebtedness of Utility Holding the Member secured by the CRR Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Appalachian Consumer Rate Relief Funding LLC), Limited Liability Company Agreement (Appalachian Consumer Rate Relief Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for U.S. federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all reasonable steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other PersonPerson and correcting any known misunderstanding, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of of, borrow money or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization ActStorm Recovery Law;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Duke Energy Carolinas SC Storm Funding LLC), Limited Liability Company Agreement (Duke Energy Carolinas SC Storm Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents or the Additional Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents or the Additional Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents or Additional Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate has any access (except CEHEKentucky Power, solely in its capacity as Servicer and or as Administrator) has any access), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents, the Additional Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee or, in the case of an Additional Series, to the applicable Additional Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of (i) the Administrator pursuant to the Administration Agreement and Agreement, (ii) the administrator for any Additional Series pursuant to the corresponding administration agreement, (iii) the Servicer pursuant to the Servicing AgreementAgreement and (iv) the servicer for any Additional Series pursuant to the corresponding servicing agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents or the Additional Documents, in each case as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents and by the Additional Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents Documents, the Additional Documents, the Financing Order and any Subsequent Financing Order and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents or in the Additional Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents or the Additional Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement Agreement, the Basic Documents and the Basic Additional Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents and by the Additional Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents and by the Additional Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Cost Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) except as described herein with respect to tax purposes and financial reporting, treat and cause the Member to treat the transfer of securitized property (including the System Restoration Property Cost Recovery Property) from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
; (aa) so long as any of the Bonds or Additional Series are Outstanding, treat the Bonds and each Additional Series, as applicable, as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Kentucky Power Cost Recovery LLC), Limited Liability Company Agreement (Kentucky Power Cost Recovery LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHENYSEG, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Recovery Property from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as indebtedness of Utility Holding the Member secured by the Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (NYSEG Storm Funding LLC), Limited Liability Company Agreement (NYSEG Storm Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHERG&E, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Recovery Property from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as indebtedness of Utility Holding the Member secured by the Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (RG&E Storm Funding LLC), Limited Liability Company Agreement (RG&E Storm Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) allocate fairly and reasonably shares expenses, including shared office space;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on a basis consistent with an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate has any access (except CEHE, PNM in its capacity as Servicer and Administrator) has any accessServicer, Administrator or Sponsor), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
Member (r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to other than the Company);
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration any Energy Transition Property transferred to the Company pursuant to the a Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Energy Transition Property from the Member to the Company as a sale under the Securitization Energy Transition Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aa) so long as any of the Energy Transition Bonds are Outstandingoutstanding, treat the Energy Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Energy Transition Bonds are Outstandingoutstanding, treat the Energy Transition Bonds as indebtedness of Utility Holding the Member secured by the Energy Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.;
Appears in 2 contracts
Sources: Limited Liability Company Agreement (PNM Energy Transition Bond Co I, LLC), Limited Liability Company Agreement (PNM Energy Transition Bond Co I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHEAmeren Missouri, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses Ongoing Financing Costs (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitized Utility Tariff Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitized Utility Tariff Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as indebtedness of Utility Holding the Member secured by the Securitized Utility Tariff Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Ameren Missouri Securitization Funding I, LLC), Limited Liability Company Agreement (Ameren Missouri Securitization Funding I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all transactions with Affiliates on an arm’s arm's-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, nor indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, nor have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles principals (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) allocate fairly funds and reasonably the salaries maintain a sufficient number of and the expenses related to providing the benefits employees in light of officers or managers shared with the Member, any Special Member or any Managerits contemplated operations;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lk) maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(ml) conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nm) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(on) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(po) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qp) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rq) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(sr) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(ts) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(ut) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wv) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xw) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yx) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zy) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s 's identity separate from any Affiliate or any Person;
(aaz) so long as any of the Bonds Notes are Outstandingoutstanding, treat the Bonds Notes as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory reporting or tax purposespurposes or as required under the Public Utility Holding Company Act of 1935, as amended;
(bbaa) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds Notes are Outstandingoutstanding, treat the Bonds Notes as indebtedness of Utility Holding the Member secured by the Bond Note Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddbb) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffcc) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggdd) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (CPL Transition Funding LLC), Limited Liability Company Agreement (CPL Transition Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other PersonPerson and correcting any known misunderstandings, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) allocate fairly and reasonably shares expenses, including shared office space;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration any Nuclear Asset-Recovery Property transferred to the Company pursuant to the a Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Nuclear Asset-Recovery Property from the Member to the Company as a sale under the Securitization ActNuclear Asset-Recovery Law;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any Nuclear Asset-Recovery Bonds of the Bonds any series are Outstandingoutstanding, treat the Nuclear Asset-Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any Nuclear Asset-Recovery Bonds of the Bonds a series are Outstandingoutstanding, treat the Nuclear Asset-Recovery Bonds of that series as indebtedness of Utility Holding the Member secured by the applicable Nuclear Asset-Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and ;
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure ;
(ii) except as provided in Section 7.06, at all times have at least one Independent Manager;
(jj) not, directly or indirectly, engage in any business or activity other than the transactions contemplated by this Agreement;
(kk) not incur any indebtedness, liability, obligation, or expense, or own any assets, other than in each case those that are contemplated by this Agreement;
(ll) not make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, other than as contemplated by this Agreement and the Basic Documents; and
(mm) cause the members, managers, officers, agents, and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Duke Energy Florida, Llc.), Limited Liability Company Agreement (Duke Energy Florida, Llc.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own fundsfunds and maintain a sufficient number of employees in light of its contemplated operations;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead for office space shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory reporting or tax purposespurposes or as required under the Public Utility Holding Company Act of 2005 and the Federal Power Act;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as indebtedness of Utility Holding the Member secured by the Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Aep Texas Central Co), Limited Liability Company Agreement (Aep Texas Central Co)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHELiberty, in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitized Utility Tariff Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitized Utility Tariff Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as indebtedness of Utility Holding the Member secured by the Securitized Utility Tariff Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Empire District Bondco, LLC), Limited Liability Company Agreement (Empire District Bondco, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principlesGAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Sole Member and the Managers Management Committee shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Sole Member, Affiliates of the Sole Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain in full effect its existence, rights and franchises as a limited liability company under the assets laws of the Company State of Delaware and obtain and preserve its qualification to do business in each jurisdiction in which such a manner that it qualification is not costly or difficult shall be necessary to segregate, identify protect the validity and enforceability of this Agreement and each other instrument or ascertain its individual assets from those of any other Person, including any Affiliateagreement necessary or appropriate to the proper administration hereof and to permit and effectuate the undertakings contemplated hereby;
(b) hold itself out to the public and all third Persons as a legal entity separate from the Sole Member and any other Person at all times, and correct any known misunderstandings regarding its separate identity;
(c) maintain a separate telephone number;
(d) maintain its own deposit and securities accounts separate from those of any Affiliate or other Person, and as to which no Affiliate has access;
(e) maintain an arm’s length relationship with Affiliates, including each member of the FirstEnergy Affiliated Group and conduct all transactions with Affiliates on an arm’s length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ig) allocate pay its own liabilities out of its own funds, including fees and expenses of the administrator pursuant to the Administration Agreement and the servicer pursuant to any Servicing Agreement, and ensure that, to the extent that it jointly contracts with the Sole Member or any other Affiliate to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly and reasonably among such entities, and each such entity shall bear its fair share of such costs;
(h) maintain a principal executive and administrative office through which its business is conducted separate from those of the salaries of and the expenses related to providing the benefits of officers or managers shared with the Sole Member, any Special member of the FirstEnergy Affiliated Group or any other Affiliate. To the extent that the Company and the Sole Member or any Managerother Affiliate have offices in contiguous space, the Company’s office space shall be separate and clearly delineated from the office space of any such Affiliate and there shall be fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(ji) allocate fairly observe all necessary, appropriate and reasonably any overhead shared with customary formalities, including holding all regular and special meetings, including meetings of the MemberManagement Committee, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or appropriate to authorize all action on behalf of the Company’s allocable share of any such amounts provided by one , keeping all resolutions or more other Affiliates) and not have such operating expenses consents necessary to authorize actions taken or to be taken (including, all resolutions, records, agreements or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise), and maintaining accurate and separate books, records (financial or other), accounts and minutes (of actions of Members and Directors), including payroll and intercompany transaction accounts;
(j) maintain financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with GAAP and audited annually by an independent accounting firm which shall provide such audit to the Bond Trustee under the Bond Indenture;
(k) cause to have prepared and filed its own tax returns, if any, as provided thereinmay 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(l) at all times vest the management of the Company in the Management Committee and, from and after the entry into the Purchase and Sale Agreement and the acquisition of the Phase-In-Recovery Property, ensure that its Management Committee shall at all times include at least two Independent Directors;
(m) refrain from commingling its assets with those of the Sole Member or any member of the FirstEnergy Affiliated Group, except as permitted hereunder or under any of the Basic Documents, and maintain its assets in such a manner that is not costly or difficult to segregate or determine its assets from those of any other Person including any Affiliate;
(n) refrain from making any loan or advance to, pledging assets for the benefit of, or acquiring any obligations or securities of any Person, including the Sole Member, except as permitted hereunder or under any of the Basic Documents;
(o) conduct business solely in its own name through the Company’s Directors, Officers and agents, and no Affiliate shall be appointed to act as agent of the Company, except as expressly contemplated by the Basic Documents; and not permit any Affiliate to acquire obligations of, or make loans or advances to, the Company except as permitted under the Basic Documents;
(p) not guarantee, become obligated for or pay the debts of any Affiliate, including any member of the FirstEnergy Affiliated Group, or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or any other Person (or, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), or, except as contemplated in the Basic Documents, permit the Sole Member or any other Affiliate to become liable for, guarantee or pay the debts of the Company or permit any such Person to hold out its creditworthiness as being available to pay the liabilities or expenses of the Company or indemnify any Person for losses resulting therefrom, or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, or seek or obtain credit or incur any obligation to any third Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e. other than based on the assets of the Company) or allow any Affiliate to do such things based on the credit of the Company;
(q) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nr) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(os) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefromdocuments;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the all Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yv) treat and cause the Sole Member to treat the transfer of the System Restoration Phase-In-Recovery Property from the Sole Member to the Company as a sale under the Securitization ActStatute;
(zw) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aax) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bby) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding the Sole Member secured by the Bond Phase-In-Recovery Property Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffz) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; ;
(aa) disclose, and cause the Sole Member to disclose, in its financial statements the effects of all transactions between the Sole Member and the Company in accordance with GAAP, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the Phase-In-Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (ggiii) cause neither the Sole Member to observe nor any other Affiliate is liable or responsible for the debts of the Company; and
(bb) comply with all restrictions on its business and operations as set forth in all material respects all limited liability company procedures Sections 2.5 and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions2.7. Failure of the Company, or the Sole Member or any Manager Management Committee on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Sole Member or the ManagersDirectors.
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principlesGAAP) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Sole Member and the Managers Management Committee shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Sole Member, Affiliates of the Sole Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain in full effect its existence, rights and franchises as a limited liability company under the assets laws of the Company State of Delaware and obtain and preserve its qualification to do business in each jurisdiction in which such a manner that it qualification is not costly or difficult shall be necessary to segregate, identify protect the validity and enforceability of this Agreement and each other instrument or ascertain its individual assets from those of any other Person, including any Affiliateagreement necessary or appropriate to the proper administration hereof and to permit and effectuate the undertakings contemplated hereby;
(b) hold itself out to the public and all third Persons as a legal entity separate from the Sole Member and any other Person at all times, and correct any known misunderstandings regarding its separate identity;
(c) maintain a separate telephone number;
(d) maintain its own deposit and securities accounts separate from those of any Affiliate or other Person, and as to which no Affiliate has access;
(e) maintain an arm’s length relationship with Affiliates, including each member of the FirstEnergy Affiliated Group and conduct all transactions with Affiliates on an arm’s length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, ’ to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ig) allocate pay its own liabilities out of its own funds, including fees and expenses of the administrator pursuant to the Administration Agreement and the servicer pursuant to any Servicing Agreement, and ensure that, to the extent that it jointly contracts with the Sole Member or any other Affiliate to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly and reasonably among such entities, and each such entity shall bear its fair share of such costs;
(h) maintain a principal executive and administrative office through which its business is conducted separate from those of the salaries of and the expenses related to providing the benefits of officers or managers shared with the Sole Member, any Special member of the FirstEnergy Affiliated Group or any other Affiliate. To the extent that the Company and the Sole Member or any Managerother Affiliate have offices in contiguous space, the Company’s office space shall be separate and clearly delineated from the office space of any such Affiliate and there shall be fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;
(ji) allocate fairly observe all necessary, appropriate and reasonably any overhead shared with customary formalities, including holding all regular and special meetings, including meetings of the MemberManagement Committee, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or appropriate to authorize all action on behalf of the Company’s allocable share of any such amounts provided by one , keeping all resolutions or more other Affiliates) and not have such operating expenses consents necessary to authorize actions taken or to be taken (including, all resolutions, records, agreements or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise), and maintaining accurate and separate books, records (financial or other), accounts and minutes (of actions of Members and Directors), including payroll and intercompany transaction accounts;
(j) maintain financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with GAAP and audited annually by an independent accounting firm which shall provide such audit to the Bond Trustee under the Bond Indenture;
(k) cause to have prepared and filed its own tax returns, if any, as provided thereinmay 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 or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(l) at all times vest the management of the Company in the Management Committee and, from and after the entry into the Purchase and Sale Agreement and the acquisition of the Phase-In-Recovery Property, ensure that its Management Committee shall at all times include at least two Independent Directors;
(m) refrain from commingling its assets with those of the Sole Member or any member of the FirstEnergy Affiliated Group, except as permitted hereunder or under any of the Basic Documents, and maintain its assets in such a manner that is not costly or difficult to segregate or determine its assets from those of any other Person including any Affiliate;
(n) refrain from making any loan or advance to, pledging assets for the benefit of, or acquiring any obligations or securities of any Person, including the Sole Member, except as permitted hereunder or under any of the Basic Documents;
(o) conduct business solely in its own name through the Company’s Directors, Officers and agents, and no Affiliate shall be appointed to act as agent of the Company, except as expressly contemplated by the Basic Documents; and not permit any Affiliate to acquire obligations of, or make loans or advances to, the Company except as permitted under the Basic Documents;
(p) not guarantee, become obligated for or pay the debts of any Affiliate, including any member of the FirstEnergy Affiliated Group, or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or any other Person (or, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), or, except as contemplated in the Basic Documents, permit the Sole Member or any other Affiliate to become liable for, guarantee or pay the debts of the Company or permit any such Person to hold out its creditworthiness as being available to pay the liabilities or expenses of the Company or indemnify any Person for losses resulting therefrom, or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, or seek or obtain credit or incur any obligation to any third Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e. other than based on the assets of the Company) or allow any Affiliate to do such things based on the credit of the Company;
(q) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nr) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(os) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefromdocuments;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the all Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yv) treat and cause the Sole Member to treat the transfer of the System Restoration Phase-In-Recovery Property from the Sole Member to the Company as a sale under the Securitization ActStatute;
(zw) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aax) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bby) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding the Sole Member secured by the Bond Phase-In-Recovery Property Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffz) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; (aa) disclose, and cause the Sole Member to disclose, in its financial statements the effects of all transactions between the Sole Member and the Company in accordance with GAAP, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the Phase-In-Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (ggiii) cause neither the Sole Member to observe nor any other Affiliate is liable or responsible for the debts of the Company; and
(bb) comply with all restrictions on its business and operations as set forth in all material respects all limited liability company procedures Sections 2.5 and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions2.7. Failure of the Company, or the Sole Member or any Manager Management Committee on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Sole Member or the ManagersDirectors.
Appears in 1 contract
Sources: Limited Liability Company Agreement (FirstEnergy Ohio PIRB Special Purpose Trust 2013)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member The Company and the Managers Members shall take all reasonable steps necessary to maintain and continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct and separate from those of the MemberMembers, Affiliates of the Member or any other PersonFinancing Subsidiary, and that the Company is not a division any Alternative Investment Vehicles, any Affiliate of any thereof (each a “Related Person”) or of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shallshall not:
(a) maintain engage in any business or activity other than the assets of the Company in such a manner that it is not costly or difficult activities permitted pursuant to segregate, identify or ascertain its individual assets from those of any other Person, including any AffiliateSection 2.4 hereof;
(b) conduct all transactions acquire, own or sell Investments other than in accordance with Affiliates on an arm’s length basisthis Agreement;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available fail to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of preserve its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out existence as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities duly organized, validly existing and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Property from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State jurisdiction of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations requireformation;
(eed) not form, commingle its assets with the assets of any of any Related Person or cause to be formed, of any subsidiariesother Person;
(ffe) comply fail to pay its debts and liabilities from its assets (including, without limitation, the unfunded Capital Commitments of the Members) as the same shall become due;
(f) fail to maintain its records and books of account, and bank accounts, securities accounts and custodial accounts separate and apart from those of any Related Person or any other Person;
(g) except as permitted or required pursuant to this Agreement, the Administrative Services Agreement, the operative documents evidencing any Facility or any contract entered into by the Company with all laws applicable any Portfolio Company, Alternative Investment Vehicle or Financing Subsidiary, enter into any contract or agreement with any Affiliate, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with unrelated third parties;
(h) fail to correct any known misunderstandings regarding the separate identity of the Company, any Related Person or any other Person;
(i) except as permitted by this Agreement, seek its dissolution or winding up;
(j) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person other than pursuant to any contract entered into by the Company with or for the benefit of any Portfolio Company, Alternative Investment Vehicle or Financing Subsidiary;
(k) fail either to hold itself out to the transactions public as a legal entity separate and distinct from any Related Person or any other 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 Person is transacting business, or (ii) to suggest that it is responsible for the debts of any third party (including any of its Related Persons);
(l) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that in no event shall any Member be required to make a Capital Contribution other than as expressly provided in this Agreement.
(m) except as may be required by this LLC Agreement the Code and regulations thereunder or other applicable state or local tax law, hold itself out as or be considered as a department or division of any of its Related Persons or permit any of its Related Persons to hold themselves out as or be considered as a department or division of the Basic Documents; Company;
(n) fail to maintain separate financial statements, showing its assets and liabilities separate and apart from those of any Related Person or those of any other Person (ggexcept, for financial reporting purposes, to the extent consolidated reports including the Company are required by GAAP);
(o) cause fail to pay its own liabilities and expenses only out of its own funds;
(p) to the Member extent used in its business, fail to use separate stationery, invoices and checks bearing its own name;
(q) fail to observe in all material respects all applicable Delaware limited liability company procedures and formalitiesformalities with respect to the Company;
(r) fail to file its own separate tax return, if anyor file a consolidated federal income tax return with any other Person, except as may be required by its constituent documents the Code and the laws of regulations thereunder, and/or fail to pay any taxes required to be paid by the Company under applicable law; or
(s) take any action, or conduct its state of formation affairs in a manner, that is likely to result in its separate existence being ignored or in its assets and all liabilities being substantively consolidated with any other appropriate jurisdictionsPerson in a bankruptcy, reorganization or other insolvency proceeding. Failure of the Company, or the Member or any Manager on behalf of the Company, Company to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of a Member.
(d) Section 3.1(d) of the Agreement is hereby amended by inserting the phrase “and for purposes of repayments of debt and expenses incurred under any Subscription Facility prior to such suspension” immediately prior to the period at the end of such Section.
(e) Section 6.1(a) of the Agreement is hereby amended by inserting the following sentence at the end of such Section: “In addition, notwithstanding the foregoing or any other provision of this Agreement, with respect to any Investment sold or contributed by either Member to the Company or any Financing Subsidiary thereof, neither such Member nor any Board Member appointed by such Member shall have any right to veto or otherwise block any decision made by the other Members of the Company or Board Members appointed by other Members of the Company to make a claim against (or to defend a claim by) such Member that sold or contributed such Investment with respect to any covenants, representations or warranties in any written agreement or certificate it has entered into for the benefit of the JV in connection with the sale or contribution of any such Investment.”
(f) Section 6.15(a) of the Agreement is hereby amended by:
(i) deleting the phrase in the first through third lines thereof “each Board Member and each Member and its employees, directors, officers, owners, principals, shareholders, members, and partners” and replacing it with the phrase “each Board Member, each officer, representative or agent of the Company, each Member, each investment manager or investment adviser of each Member and their respective employees, directors, officers, owners, principals, shareholders, members, and partners”, and
(ii) deleting the phrase in the eighth through tenth lines thereof “by reason of the fact that such Person, is or was a Board Member, an officer or representative or agent of the Company, a Member or an employee, director officer, owner, principal, shareholder , member of partner of a Member” and replacing it with the Managersphrase “by reason of the fact that such Person is or was a Board Member, an officer, representative or agent of the Company, a Member, an investment manager or investment adviser of a Member or an employee, director, officer, owner, principal, shareholder, member or partner of any thereof”.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Goldman Sachs BDC, Inc.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for U.S. federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all reasonable steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other PersonPerson and correcting any known misunderstanding, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of of, borrow money or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberMember (other than the Company);
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization ActStorm Recovery Law;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Bond Storm Recovery Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Duke Energy Carolinas NC Storm Funding II LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) : maintain office space separate and clearly delineated from the office space of any Affiliate; maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) ; maintain a separate telephone number; conduct all transactions with Affiliates on an arm’s arm's-length basis;
(c) ; not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) ; except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(e) ; maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) ; maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) ; pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(h) not hire or maintain any employees, but shall ; compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) funds and maintain a sufficient number of employees in light of its contemplated operations; allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(j) ; allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) ; pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) ; maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) ; conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) ; not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) ; otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) documents; not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) ; not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) ; not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) ; except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) ; maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) ; cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) ; direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) ; cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) ; disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) ; treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization Act;
(z) Utilities Code; except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s 's identity separate from any Affiliate or any Person;
(aa) ; so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) ; solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as indebtedness of Utility Holding the Member secured by the Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) ; file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) ; maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) ; not form, or cause to be formed, any subsidiaries;
(ff) ; comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager the Managers on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers. In addition, none of the foregoing shall require the Member to make any additional capital contributions to the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Entergy Texas Restoration Funding, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own fundsfunds and maintain a sufficient number of employees in light of its contemplated operations;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Arkansas Electric Utility Storm Recovery Securitization Act;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager the Managers on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers. In addition, none of the foregoing shall require the Member to make any additional capital contributions to the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Entergy Arkansas Restoration Funding, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of the Member or any of the its Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on a basis consistent with an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate has any access (except CEHE, the Member in its capacity as Servicer and or Administrator) has any access), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state the State of formation Delaware and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Environmental Control Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Environmental Control Property from the Member to the Company as a sale under the Securitization ActStatute;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aabb) so long as any of the Environmental Trust Bonds are Outstanding, treat the Environmental Trust Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Environmental Trust Bonds are Outstanding, treat the Environmental Trust Bonds as indebtedness of Utility Holding the Member secured by the Environmental Trust Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (WEPCo Environmental Trust Finance I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Transition Bonds are Outstanding, treat the Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Transition Bonds are Outstanding, treat the Transition Bonds as indebtedness of Utility Holding the Member secured by the Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (AEP Transition Funding III LLC)
Separate Existence. Except The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity (until dissolution under Section 9.02) and, except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that (a) the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that (b) the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit or assets of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate at prudent and reasonable levels (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds, and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member Member, any Affiliate or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member Member, any Affiliate or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsor applicable law;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberAffiliate;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Energy Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate Affiliate, and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Energy Transition Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Energy Transition Bonds are Outstandingoutstanding, treat the Energy Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Energy Transition Bonds are Outstandingoutstanding, treat the Energy Transition Bonds as indebtedness of Utility Holding the Member secured by the Energy Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana (until dissolution under Section 9.02) and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(gghh) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, DTE Electric in its capacity as Servicer Servicer, and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the each Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the any Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Securitization Property transferred to the Company pursuant to the any Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitization Property from the Member to the Company as a sale under the Securitization ActStatute;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
; (aa) so long as any of the Securitization Bonds are Outstanding, treat the Securitization Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (DTE Electric Securitization Funding I LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers Borrower shall take all reasonable steps necessary (including, without limitation, in each case, all steps that the Lender may from time to continue the time reasonably request) to maintain its identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, including Holdings, Consultant and that any other Affiliate thereof. Without limiting the Company is generality of the foregoing the Borrower shall:
(1) conduct all of its business, and make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and require that all employees, if any, of the Affiliates Borrower and all Persons conducting business on Borrower’s behalf (including the Consultant and any other Affiliate of Borrower) identify themselves as such and not as employees of any other Person;
(2) compensate all employees of the Company Borrower, if any, consultants and other service providers (including Consultant and any other direct or indirect Affiliate of Borrower) directly, from the Borrower’s bank accounts, for services provided to the Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of any Affiliate of the Borrower, allocate the compensation of such Affiliate between the Borrower and such Affiliate on a basis which reflects the relative value of the services rendered to the Borrower and such Affiliate;
(3) pay its own operating expenses and liabilities from its own funds, allocate all overhead expenses (including, without limitation, telephone and other utility charges) for items shared between the Borrower and any Affiliate on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use;
(4) maintain its books and records separate from those of any Affiliate, hold meetings of its Board of Managers pursuant to its limited liability company agreement no less frequently than required by its limited liability company agreement; and maintain all resolutions and other approvals of the Board of Managers in respect of the transactions contemplated by this Agreement as official records of Borrower;
(5) comply with the provisions of its certificate of formation and its limited liability company agreement and has done or caused to be done and will do all things necessary to observe limited liability company formalities and to preserve its existence.
(6) except as expressly contemplated under the Credit Documents, prepare its financial statements separately from each Affiliate and insure that any consolidated financial statements of an Affiliate that include the Borrower have detailed notes to the effect that Borrower is a separate entity and that Borrower’s creditors have a claim on its assets prior to those assets becoming available to any creditors of such Affiliate;
(7) not commingle or permit commingling of its funds or other assets with those of any Affiliate, and not to hold its assets in any manner that would create an appearance that such assets belong to any Affiliate, and not maintain bank accounts or other depository accounts to which any Affiliate is an account party, into which any Affiliate makes deposits or from which any Affiliate has the power to make withdrawals (except pursuant to and in accordance with the provisions of the Servicing Agreement);
(8) not own any property or any other Person. In that regardassets other than Permitted Investments and associated Loan Files, cash, Cash Equivalents and without limiting the foregoing its interest under this Agreement;
(9) not engage in any mannerbusiness other than the acquisition, ownership, financing and disposition of Permitted Investments in accordance with the Company shall:applicable provisions of its formation and governance documents and this Agreement;
(a10) not incur any indebtedness or obligation, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than the Permitted Indebtedness;
(11) maintain the its assets of the Company in such a manner that it is will not be costly or difficult to segregate, ascertain or identify or ascertain its individual assets from those of any of its Affiliates or any other Person, including any Affiliate;
(b12) conduct all transactions with Affiliates on an armnot permit any Affiliate to pay any of the Borrower’s length basisoperating expenses;
(c13) other than as expressly contemplated under the Credit Documents, not guarantee, become obligated for or pay the debts guarantee any obligation of any Affiliate or hold nor (to the credit of extent that Borrower has the Company out as being available legal power to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, prevent such) have any of its obligations guaranteed by any Affiliate (either directly or by seeking credit based on the assets of such Affiliate), or otherwise hold the Company itself out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e14) maintain separate deposit have all its officers, managers, employees (if any) and other bank accounts and funds (separately identifiable from those agents conduct all of the Member or any other Person) to which no Affiliate (except CEHE, Borrower’s business solely in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the CompanyBorrower’s own name;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r15) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company itself to be made solely in named as a direct or contingent beneficiary or loss payee on any insurance policy covering the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets property of any Affiliate and are not available name other Affiliates as a direct or contingent beneficiary or loss payee on its own insurance policies such that (A) in the event of a loss in connection with such Affiliate’s property, payments on account thereof would be made to pay creditors the Borrower or such would be jointly made to the Borrower and such Affiliate, or (B) payments on account of losses to the Borrower’s property would be made to any Affiliate Affiliates, or would be jointly made to the Borrower and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the CompanyAffiliates;
(y16) treat and cause the Member to treat the transfer of the System Restoration Property from the Member to the Company as a sale under the Securitization Act;maintain an arms-length relationship with its Affiliates in compliance with Subsection 5.02(m) hereof; and
(z17) except as described herein with respect to tax purposes hold itself out and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out identify itself as a separate legal and distinct entity and not as a division or department part of any Affiliate, and promptly will not fail to correct any known misunderstanding regarding as to the Company’s identity separate separateness or distinction of it from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the ManagersAffiliate.
Appears in 1 contract
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate has any access (except CEHEAPCo, solely in its capacity as Servicer and or as Administrator) has any access), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration SAC Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) except as described herein with respect to tax purposes and financial reporting, treat and cause the Member to treat the transfer of the System Restoration SAC Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the SAC Bonds are Outstandingoutstanding, treat the SAC Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the SAC Bonds are Outstandingoutstanding, treat the SAC Bonds as indebtedness of Utility Holding the Member secured by the SAC Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Appalachian Power Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all transactions with Affiliates on an arm’s arm's-length basis;
(ce) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, nor indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, nor have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(eg) except as expressly otherwise permitted hereunder or under any of the Basic Documents, maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) allocate fairly funds and reasonably the salaries maintain a sufficient number of and the expenses related to providing the benefits employees in light of officers or managers shared with the Member, any Special Member or any Managerits contemplated operations;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lk) maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(ml) conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nm) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(on) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(po) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qp) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rq) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(sr) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(ts) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(ut) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wv) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xw) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yx) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zy) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s 's identity separate from any Affiliate or any Person;
(aaz) so long as any of the Bonds are Outstandingoutstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory reporting or tax purposespurposes or as required under the Public Utility Holding Company Act of 1935, as amended;
(bbaa) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstandingoutstanding, treat the Bonds as indebtedness of Utility Holding the Member secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddbb) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffcc) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggdd) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Oncor Electric Delivery Transition Bond Co LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own fundsfunds and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Investment Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Investment Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Investment Recovery Bonds are Outstandingoutstanding, treat the Investment Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Investment Recovery Bonds are Outstandingoutstanding, treat the Investment Recovery Bonds as indebtedness of Utility Holding the Member secured by the Investment Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(gghh) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) : maintain office space separate and clearly delineated from the office space of any Affiliate;maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct Affiliate;maintain a separate telephone number;conduct all transactions with Affiliates on an arm’s arm's-length basis;
(c) not basis;not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except Company;except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(e) maintain Affiliate;maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain Company;maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay Trustee;pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate Agreement;compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) allocate funds and maintain a sufficient number of employees in light of its contemplated operations;allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(j) allocate Manager;allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay Manager;pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain therein;maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct capital;conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not Affiliate;not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise law;otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not documents;not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not Company);not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not Member;not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except Company;except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain therefrom;maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause Documents;cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct Affiliate;direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause Company;cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) discloseDocuments;disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat Company;treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization Act;
(z) except Utilities Code;except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s 's identity separate from any Affiliate or any Person;
(aa) so Person;so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely purposes;solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Transition Bonds are Outstandingoutstanding, treat the Transition Bonds as indebtedness of Utility Holding the Member secured by the Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file authorities;file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain law;maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not require;not form, or cause to be formed, any subsidiaries;
(ff) comply subsidiaries;comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause andcause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager the Managers on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers. In addition, none of the foregoing shall require the Member to make any additional capital contributions to the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Entergy Gulf States Reconstruction Funding I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s length arm’s‑length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own fundsfunds and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers The Company shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shallnot:
(a) maintain commingle its assets with the assets of its sole member, of the Company Parent, of any of their respective Affiliates or of any other Person or fail to hold its assets in such its own name or in the name of a trustee, custodian or other agent on its behalf;
(b) fail to maintain its records and accounts, separate and apart from those of any other Person and in a manner that will be sufficient, among other things, to permit the Company to identify and account for its assets and liabilities separately from the assets and liabilities of its sole member, of the Parent, of any of their respective Affiliates or of any other Person;
(c) incur any indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Financings and other obligations owing under the Loan Documents, except for fees, expenses, and trade and other payables incurred in the ordinary course of its business which are paid when due;
(d) guarantee, become obligated for, or hold itself out to be responsible for the debt of another Person;
(e) pledge or permit the pledge of its assets to secure the obligations of any Person other than the Company or otherwise make any of its assets available to satisfy the claims of any creditor of any Person other than the Company;
(f) 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;
(g) fail to pay its debts, liabilities and expenses only from its own funds and other assets; provided that the liability of the Company for the Secured Obligations shall be guaranteed by the LuxCo Subsidiary;
(h) fail to correct any known misunderstandings regarding the separate identity of the Company from its sole member, the Parent, any of their respective Affiliates or any other Person;
(i) fail either to hold itself out to the public as a legal entity separate and distinct from any other 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 Person is transacting business, or (ii) to suggest that it is not costly responsible for the debts of any third party (including its sole member, the Parent, any of their respective Affiliates or difficult any other Person);
(j) fail to segregateact solely in its own name and through its sole member (in its capacity as the managing member of the Company) or its duly authorized officers, identify authorized signatories or ascertain agents in the conduct of its individual business;
(k) except as may be required by the Code and regulations thereunder or other applicable tax law, hold itself out as or be considered as a department or division of its sole member, the Parent, of any of their respective Affiliates or of any other Person;
(l) fail to file its own separate tax return, or file a consolidated federal income tax return with any other Person, except as may be required by the Code and the regulations thereunder;
(m) fail to maintain proper books of record and account in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company, separate and apart from those of any other Person, including any Affiliate;
provided, however, that the Company's assets may be included in a consolidated financial statement of its Parent, provided that (ba) conduct all transactions with Affiliates appropriate notation shall be made on an arm’s length basis;
(c) not guarantee, become obligated for or pay such consolidated financial statements to indicate the debts of any Affiliate or hold the credit separateness of the Company out as being from the Parent and to indicate that the Company's assets and credit are not available to satisfy the debts and other obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate Parent or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do and (b) such things based assets shall also be listed on the credit of the Company's own separate balance sheet;
(dn) except as expressly otherwise permitted hereunder or under any fail to either maintain a sufficient number of the Basic Documentsofficers, not permit the commingling or pooling of the Company’s funds authorized signatories or other assets with the funds personnel, and/or engage sufficient service providers, agents or other assets Persons (including the Parent or Affiliate thereof), in light of any Affiliateits contemplated operations;
(eo) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) fail to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead expenses that are shared with the Member, any Special Member Parent Entity or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other their respective Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of to the Companyextent used in its business, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company)fail to use separate stationery, invoices, and checks bearing its own name;
(q) not acquire obligations or securities of of, or make any loans or advances to to, or pledge its assets for the benefit of any Affiliate, the Member Parent Entity or any Affiliate of their respective Affiliates other than the MemberLuxCo Subsidiary;
(r) not permit except pursuant to the Member Sale Agreements or as may be permitted or required by the Loan Documents, enter into any contract or agreement with any Parent Entity or any Affiliate of their respective Affiliates, except upon terms and conditions that are commercially reasonable and intrinsically fair and substantially similar to acquire obligations those that would be available on an arm's-length basis with unrelated third parties; provided that nothing in this clause (r) shall prohibit (x) a Permitted Distribution or a Permitted Tax Distribution or (y) a transfer out of or make loans or advances to the CompanyExcluded Permitted Distribution Account;
(s) to the fullest extent permitted by Applicable Law and except as expressly provided in permitted by the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts Amended and Restated Limited Liability Company Agreement of the Company nor permit any such Person to hold out Company, seek its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities dissolution or winding up in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefromwhole or in part;
(t) maintain separate minutes of fail to observe applicable Delaware limited liability company formalities or fail to comply with the actions of the Member Amended and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Restated Limited Liability Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts Agreement of the Company;
(yu) treat fail to maintain the Company's minutes, resolutions, written consents and cause other actions authorizing the Member to treat the transfer of the System Restoration Property from the Member to transactions entered into by the Company as its official records, in a sale under manner that permits them to be separately identified from the Securitization Act;records of each Parent Entity and any Affiliate thereof; or
(zv) fail at any time to have at least one (1) Independent Manager except while a vacancy is being filled as described herein with respect to tax purposes required by the Amended and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Restated Limited Liability Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt Agreement of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Loan and Security Agreement (Bain Capital Specialty Finance, Inc.)
Separate Existence. Except The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity (until dissolution under Section 9.02) and, except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that (a) the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that (b) the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit or assets of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate at prudent and reasonable levels (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds, and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member Member, any Affiliate or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member Member, any Affiliate or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsor applicable law;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberAffiliate;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the other Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate Affiliate, and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana (until dissolution under Section 9.02) and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(gghh) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Cleco Power LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Phase-in-Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Phase-in-Recovery Property from the Member to the Company as a sale under the Securitization ActLaw;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the Phase-In-Recovery Bonds are Outstandingoutstanding, treat the Phase-In-Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Phase-In-Recovery Bonds are Outstandingoutstanding, treat the Phase-In-Recovery Bonds as indebtedness of Utility Holding the Member secured by the Phase-in-Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Ohio Phase-in-Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s length arm’s‑length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the System Restoration Bonds are Outstanding, treat the System Restoration Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the System Restoration Bonds are Outstanding, treat the System Restoration Bonds as indebtedness of Utility Holding the Member secured by the System Restoration Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (AEP Texas Restoration Funding LLC)
Separate Existence. Except The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and, except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that (a) the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that (b) the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit or assets of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other PersonPerson (except as described herein with respect to tax purposes and financial reporting), prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent Independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate at prudent and reasonable levels (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds, and maintain a sufficient number of employees in light of its contemplated operations;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member Member, any Affiliate or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member Member, any Affiliate or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or Agreement, all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsor applicable law;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the MemberAffiliate;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Storm Recovery Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate Affiliate, and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Storm Recovery Property from the Member to the Company as a sale under the Securitization Actstate law (except for financial reporting and tax purposes);
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out out, as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Storm Recovery Bonds are Outstandingoutstanding, treat the Storm Recovery Bonds as indebtedness of Utility Holding the Member secured by the Storm Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware Louisiana and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gghh) cause the Member and the Managers to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Cleco Katrina/Rita Hurricane Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) maintain a separate telephone number;
(c) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the any Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rs) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(st) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tu) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uv) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vw) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wx) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xy) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Recovery Property transferred to the Company pursuant to the any Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yz) treat and cause the Member to treat the transfer of the System Restoration Recovery Property from the Member to the Company as a sale under the Securitization ActLaw;
(zaa) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aabb) so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbcc) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Recovery Bonds are Outstanding, treat the Recovery Bonds as indebtedness of Utility Holding the Member secured by the Recovery Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccdd) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddee) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eeff) not form, or cause to be formed, any subsidiaries;
(ffgg) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gghh) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (PG&E Recovery Funding LLC)
Separate Existence. Except for financial reporting purposes (to the extent consolidated reports including the Company are required by generally accepted accounting principles) and for federal income tax purposes if required by the Code and regulations thereunder, and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member Members and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the MemberMembers, Affiliates of the Member Members or any other Person, and that the Company is not a division of any of the Members, Affiliates of the Company or any other Person. In that regard, and without limiting so long as any Obligations are outstanding, except as otherwise permitted or required under the foregoing in any mannerTransaction Documents, the Company shallCompany:
(a) shall (i) maintain at least one Independent Manager; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the assets of public and all other Persons as a legal entity separate from the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of Initial Member and any other Person; (iv) to the extent the Company is managed by a board of directors, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s length basis;
(c) not guarantee, become obligated for or pay the debts have a board of any Affiliate or hold the credit directors separate from that of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business Initial Member and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
; (v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Property from the Member to the Company as a sale under the Securitization Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable lawlaws, to the extent it is (iA) not part of a consolidated group filing a consolidated return or returns or (iiB) not treated as a division or disregarded entity or division for tax purposes of another taxpayer, and pay any taxes Taxes so required to be paid under applicable law;
law in accordance with the terms of this Agreement and the Transaction Documents; (ddvi) maintain except as contemplated by the Transaction Documents, not commingle its valid existence assets with assets of any other Person; (vii) conduct its business in good standing under the laws of the State of Delaware its own name and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) strictly comply with all laws applicable organizational formalities to maintain its separate existence; (viii) maintain separate financial statements, except to the extent that the Company’s financial and operating results are consolidated with those of the Initial Member in consolidated financial statements; (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s-length relationship with the Initial Member and the Company’s other Affiliates; (xi) pay the salaries of its own employees, if any; (xii) not hold out its credit or assets as being available to satisfy the obligations of others; (xiii) allocate fairly and reasonably any overhead for shared office space; (xiv) use separate stationery, invoices and checks; (xv) except as expressly permitted by this Agreement and the Transaction Documents, not pledge its assets as security for the obligations of any other Person; (xvi) correct any known misunderstanding regarding its separate identity; (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xviii) not acquire the obligations or any securities of its Affiliates; and (xix) cause the directors, officers, agents and other representatives of the Company to act at all times with respect to the Company consistently and in furtherance of the foregoing and in the best interests of the Company; and
(b) shall not (i) guarantee any obligation of any Person, including any Affiliate; (ii) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the Transaction Documents; (iii) incur, create or assume any Indebtedness, other than Indebtedness incurred under the Transaction Documents and arising in connection with ordinary business expenses arising pursuant to the transactions contemplated by this LLC Agreement and the Basic other Transaction Documents; (iv) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities of, any Person, except that the Company may invest in those Collateral Assets and other investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions; (ggv) cause fail to pay its debts and liabilities from its assets when due; (vi) operate or purport to operate as an integrated, single economic unit with respect to any Member or any other affiliated or unaffiliated entity; (vii) seek or obtain credit or incur any obligation to any third party based upon the Member assets of any Member; (viii) induce any such third party to observe reasonably rely on the creditworthiness of any Member; or (ix) release, sell, transfer, convey or assign any Collateral Asset unless in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and accordance with the laws of its state of formation and all other appropriate jurisdictionsTransaction Documents. Failure of the Company, or the any Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the a Member or the Managersa Manager.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Barings BDC, Inc.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of 5 the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aa) so long as any of the Bonds are Outstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Entergy Texas, Inc.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all transactions with Affiliates on an arm’s arm's-length basis;
(ce) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, nor indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, nor have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(eg) except as expressly otherwise permitted hereunder or under any of the Basic Documents, maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) allocate fairly funds and reasonably the salaries maintain a sufficient number of and the expenses related to providing the benefits employees in light of officers or managers shared with the Member, any Special Member or any Managerits contemplated operations;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lk) maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(ml) conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nm) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(on) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(po) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qp) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rq) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(sr) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(ts) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(ut) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wv) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xw) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the any Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yx) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zy) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s 's identity separate from any Affiliate or any Person;
(aaz) so long as any of the Bonds are Outstandingoutstanding, treat the Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory reporting or tax purposespurposes or as required under the Public Utility Holding Company Act of 1935, as amended;
(bbaa) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the Bonds are Outstandingoutstanding, treat the Bonds as indebtedness of Utility Holding the Member secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddbb) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffcc) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the other Basic Documents; and and
(ggdd) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Oncor Electric Delivery Transition Bond Co LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(b) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(c) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(d) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(e) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHEAtmos Energy, in its capacity as Servicer and or as Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(f) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(g) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(i) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(l) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(m) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(n) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(o) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(p) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(q) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Property transferred to the Company pursuant to the Sale AgreementSecuritized Utility Tariff Bond Collateral) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Securitized Utility Tariff Property from the Member to the Company as a sale under the Securitization ActLaw;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
; (aa) so long as any of the Securitized Utility Tariff Bonds are Outstanding, treat the Securitized Utility Tariff Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, state, local and other taxes, so long as any of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Atmos Energy Kansas Securitization I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number;
(d) conduct all transactions with Affiliates on an arm’s arm’s-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hj) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s own funds;
(ik) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers other employees shared with the Member, any Special Member or any Manager;
(jl) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(km) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(ln) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mo) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(np) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(oq) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pr) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qs) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rt) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(su) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(tv) maintain separate minutes of the actions of the Member and the Managers, including the transactions contemplated by the Basic Documents;
(uw) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vx) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wy) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xz) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yaa) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zbb) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any Person;
(aacc) so long as any of the System Restoration Bonds are Outstandingoutstanding, treat the System Restoration Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bbdd) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any of the System Restoration Bonds are Outstandingoutstanding, treat the System Restoration Bonds as indebtedness of Utility Holding the Member secured by the System Restoration Bond Collateral unless otherwise required by appropriate taxing authorities;
(ccee) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddff) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(eegg) not form, or cause to be formed, any subsidiaries;
(ffhh) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggii) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers. In addition, none of the foregoing shall require the Member to make any additional capital contributions to the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Entergy Texas, Inc.)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, the Company is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) allocate fairly and reasonably shares expenses, including shared office space;
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) conduct all transactions with Affiliates on a basis consistent with an arm’s arm’s-length basis;
(cd) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(de) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s funds or other assets with the funds or other assets of any Affiliate;
(ef) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate has any access (except CEHE, PNM in its capacity as Servicer and Administrator) has any accessServicer, Administrator or Sponsor), which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the tax identification number of the Company;
(fg) maintain full books of accounts and records (financial or other) and financial statements separate from those of its Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles (including, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gh) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the any Servicing Agreement;
(hi) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s allocable share of any shared expenses) all consultants, agents and Affiliates, to the extent applicable, for services provided to the Company by such consultants, agents or Affiliates, in each case, from the Company’s own funds;
(ij) allocate fairly and reasonably the salaries of and the expenses related to providing the benefits of officers or managers shared with the Member, any Special Member or any Manager;
(jk) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(kl) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s allocable share of any such amounts provided by one or more other Affiliates) and not have such operating expenses (or the Company’s allocable share thereof) paid by any Affiliates, ; provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided therein;
(lm) maintain adequate capitalization to conduct its business and affairs considering the Company’s size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(mn) conduct all of the Company’s business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s Managers, officers and agents and hold the Company out as an entity separate from any Affiliate;
(no) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(op) otherwise practice and adhere to all limited liability company procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictions;
(pq) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qr) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
Member (r) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to other than the Company);
(s) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(t) maintain separate minutes of the actions of the Member and the Managers, in their capacities as such, including actions with respect to the transactions contemplated by the Basic Documents;
(u) cause (i) all written and oral communications, including letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law), stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(v) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and cause the Affiliates to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(w) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(x) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration any Energy Transition Property transferred to the Company pursuant to the a Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(y) treat and cause the Member to treat the transfer of the System Restoration Energy Transition Property from the Member to the Company as a sale under the Securitization Energy Transition Act;
(z) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding regarding the Company’s identity separate from any Affiliate or any other Person;
(aa) so long as any Energy Transition Bonds of the Bonds any series are Outstandingoutstanding, treat the Energy Transition Bonds as debt for all purposes and specifically as debt of the Company, other than for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other tax law, solely for purposes of state, local and other taxes, so long as any Energy Transition Bonds of the Bonds a series are Outstandingoutstanding, treat the Energy Transition Bonds of that series as indebtedness of Utility Holding the Member secured by the applicable Energy Transition Bond Collateral unless otherwise required by appropriate taxing authorities;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(dd) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ff) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and (gg) cause the Member to observe in all material respects all limited liability company procedures and formalities, if any, required by its constituent documents and this Agreement, the laws of its state the State of formation Delaware and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.;
Appears in 1 contract
Sources: Limited Liability Company Agreement (PNM Energy Transition Bond Co I, LLC)
Separate Existence. Except for financial reporting purposes (to the extent required by generally accepted accounting principles) and for federal income tax purposes and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, the The Member and the Managers shall take all steps necessary to continue the identity of the Company as a separate legal entity and to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of the Member, Affiliates of the Member or any other Person, and that that, except for financial reporting purposes (to the Company extent required by generally accepted accounting principles) and for federal income and, to the extent consistent with applicable state tax law, state income and franchise tax purposes, it is not a division of any of the Affiliates of the Company or any other Person. In that regard, and without limiting the foregoing in any manner, the Company shall:
(a) maintain office space separate and clearly delineated from the office space of any Affiliate, owned by the Company or evidenced by a written lease or sublease (even if located in an office owned or leased by, or shared with, an Affiliate);
(b) maintain the assets of the Company in such a manner that it is not costly or difficult to segregate, identify or ascertain its individual assets from those of any other Person, including any Affiliate;
(bc) maintain a separate telephone number which will be answered only in its own name;
(d) conduct all intercompany transactions with Affiliates on an arm’s arm's-length basis;
(ce) not guarantee, become obligated for or pay the debts of any Affiliate or hold the credit of the Company out as being available to satisfy the obligations of any Affiliate or other Person (nor, except as contemplated in the Basic Documents, nor indemnify any Person for losses resulting therefrom), nor, except as contemplated in the Basic Documents, nor have any of its obligations guaranteed by any Affiliate or hold the Company out as responsible for the debts of any Affiliate or other Person or for the decisions or actions with respect to the business and affairs of any Affiliate, nor seek or obtain credit or incur any obligation to any third party third-Party based upon the creditworthiness or assets of any Affiliate or any other Person (i.e., i.e. other than based on the assets of the Company) nor allow any Affiliate to do such things based on the credit of the Company;
(df) except as expressly otherwise permitted hereunder or under any of the Basic Documents, not permit the commingling or pooling of the Company’s 's funds or other assets with the funds or other assets of any Affiliate;
(eg) maintain separate deposit and other bank accounts and funds (separately identifiable from those of the Member or any other Person) to which no Affiliate (except CEHE, in its capacity as Servicer and Administrator) has any access, which accounts shall be maintained in the name and, to the extent not inconsistent with applicable federal tax law, with the and tax identification number of the Company;
(fh) maintain full books of accounts and records (financial or other) and financial statements separate from those of its the Affiliates or any other Person, prepared and maintained in accordance with generally accepted accounting principles principals (including, but not limited to, all resolutions, records, agreements or instruments underlying or regarding the transactions contemplated by the Basic Documents or otherwise) and will be audited annually by an independent accounting firm which, upon written request, which shall provide such audit to the Indenture Trustee;
(gi) pay its own liabilities out of its own funds, including fees and expenses of the Administrator pursuant to the Administration Agreement and the Servicer pursuant to the Servicing Agreement;
(h) not hire or maintain any employees, but shall compensate (either directly or through reimbursement of the Company’s 's allocable share of any shared expenses) all consultantsemployees, consultants and agents and Affiliates, to the extent applicable, for services provided to the Company by such consultantsemployees, consultants and agents or Affiliates, in each case, from the Company’s 's own funds;
(i) allocate fairly funds and reasonably the salaries maintain a sufficient number of and the expenses related to providing the benefits employees in light of officers or managers shared with the Member, any Special Member or any Managerits contemplated operations;
(j) allocate fairly and reasonably any overhead shared with the Member, any Special Member or any Manager;
(k) pay from its own bank accounts for accounting and payroll services, rent, lease and other expenses (or the Company’s 's allocable share of any such amounts provided by one or more other AffiliatesAffiliate) and not have such operating expenses (or the Company’s 's allocable share thereof) paid by any Affiliates, provided, that the Member shall be permitted to pay the initial organization expenses of the Company and certain of the expenses related to the transactions contemplated by the Basic Documents as provided thereinincurred on or prior to the closing date for such transactions;
(lk) maintain adequate capitalization to conduct its business and affairs considering the Company’s 's size and the nature of its business and intended purposes and, after giving effect to the transactions contemplated by the Basic Documents, refrain from engaging in a business for which its remaining property represents an unreasonably small capital;
(ml) conduct all of the Company’s 's business (whether in writing or orally) solely in the name of the Company through the Member and the Company’s 's Managers, employees, officers and agents and hold the Company out as an entity separate from any Affiliate;
(nm) not make or declare any distributions of cash or property to the Member except in accordance with appropriate limited liability company corporate formalities and only consistent with sound business judgment to the extent that it is permitted pursuant to the Basic Documents and not violative of any applicable law;
(on) otherwise practice and adhere to all limited liability company corporate procedures and formalities to the extent required by this LLC Agreement or all other appropriate constituent documents and the laws of its state of formation and all other appropriate jurisdictionsdocuments;
(po) not appoint an Affiliate or any employee of an Affiliate as an agent of the Company, except as otherwise permitted in the Basic Documents (although such Persons can qualify as a Manager or as an officer of the Company);
(qp) not acquire obligations or securities of or make loans or advances to or pledge its assets for the benefit of any Affiliate, the Member or any Affiliate of the Member;
(rq) not permit the Member or any Affiliate to acquire obligations of or make loans or advances to the Company;
(sr) except as expressly provided in the Basic Documents, not permit the Member or any Affiliate to guarantee, pay or become liable for the debts of the Company nor or permit any such Person to hold out its creditworthiness as being available to pay the liabilities and expenses of the Company nor, except for the indemnities in this LLC Agreement and the Basic Documents, indemnify any Person for losses resulting therefrom;
(ts) maintain separate minutes of the actions of the Member and the Managers, including of the transactions contemplated by the Basic Documents;
(ut) cause (i) all written and oral communications, including including, without limitation, letters, invoices, purchase orders, and contracts, of the Company to be made solely in the name of the Company, (ii) the Company to have its own tax identification number (to the extent not inconsistent with applicable federal tax law)number, stationery, checks and business forms forms, separate from those of any Affiliate, (iii) all Affiliates not to use the stationery or business forms of the Company, and cause for the Company not to use the stationery or business forms of any Affiliate, and (iv) all Affiliates not to conduct business in the name of the Company, and cause the Company not to conduct business in the name of any Affiliate;
(vu) direct creditors of the Company to send invoices and other statements of account of the Company directly to the Company and not to any Affiliate and to cause the Affiliates not to direct their creditors not to send invoices and other statements of accounts of such Affiliates to the Company;
(wv) cause the Member to maintain as official records all resolutions, agreements, and other instruments underlying or regarding the transactions contemplated by the Basic Documents;
(xw) disclose, and cause the Member to disclose, in its financial statements the effects of all transactions between the Member and the Company in accordance with generally accepted accounting principles, and in a manner which makes it clear that (i) the Company is a separate legal entity, (ii) the assets of the Company (including the System Restoration Transition Property transferred to the Company pursuant to the Sale Agreement) are not assets of any Affiliate and are not available to pay creditors of any Affiliate and (iii) neither the Member nor any other Affiliate is liable or responsible for the debts of the Company;
(yx) treat and cause the Member to treat the transfer of the System Restoration Transition Property from the Member to the Company as a sale under the Securitization ActUtilities Code;
(zy) except as described herein with respect to tax purposes and financial reporting, describe and cause each Affiliate to describe the Company, and hold the Company out as a separate legal entity and not as a division or department of any Affiliate, and promptly correct any known misunderstanding misunderstandings regarding the Company’s its identity separate from any Affiliate or any Person;
(aaz) so long as any of the Bonds are Outstanding, treat the Bonds Notes as debt for all purposes and specifically as debt obligations of the Company, other than except for financial reporting, state or federal regulatory or tax purposes;
(bb) solely for purposes of federal income taxes and, to the extent consistent with applicable state, local and other state tax law, statestate tax purposes, local and other taxes, so long for which the Notes will be treated as any debt obligations of the Bonds are Outstanding, treat the Bonds as indebtedness of Utility Holding secured by the Bond Collateral unless otherwise required by appropriate taxing authoritiesMember;
(cc) file its own tax returns, if any, as may be required under applicable law, to the extent (i) not part of a consolidated group filing a consolidated return or returns or (ii) not treated as a division or disregarded entity for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;
(ddaa) maintain its valid existence in good standing under the laws of the State of Delaware and maintain its qualification to do business under the laws of such other jurisdictions as its operations require;
(ee) not form, or cause to be formed, any subsidiaries;
(ffbb) comply with all laws applicable to the transactions contemplated by this LLC Agreement and the Basic Documents; and and
(ggcc) cause the Member to observe in all material respects all limited liability company corporate procedures and formalities, if any, required by its constituent documents and the laws of its state of formation and all other appropriate jurisdictions. Failure of the Company, or the Member or any Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this LLC Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Managers.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Central & South West Corp)