Corporate Separateness; Related Matters and Covenants. Each of Master Servicer and Seller covenant, until the Final Payout Date as follows: (a) Seller and Master Servicer shall assure that Seller, Performance Guarantor, Master Servicer and each Originator (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each Originator, Performance Guarantor, Master Servicer and any of their respective Affiliates, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with: (i) Seller shall maintain (or cause to be maintained) separate company records, books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and to permit a determination of the obligees thereon and the time for performance on each of Seller’s obligations) from those of each CHR Party and their respective Affiliates other than Seller; (ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party or any of their respective Affiliates other than Seller; (iii) at least one member of Seller’s Board of Directors shall be an Independent Director and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent Director” as used herein, (ii) that Seller’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 and without the prior written consent of the Independent Director; (iv) the members and Board of Directors of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent Director. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller; (v) Seller shall compensate its Independent Director in accordance with its limited liability company agreement; (vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party or any of their respective Affiliates (except by CHR as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall service the Pool Receivables as contemplated by the Transaction Documents; (vii) Seller shall use, as needed, its own separate stationery; (viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party or any Affiliate of any of them, on the other hand (other than as contemplated hereby and in the other Transaction Documents); (ix) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are acting on behalf of Seller. No Originator, Master Servicer, Performance Guarantor or any Affiliates of Master Servicer shall be appointed as an agent of Seller, except in the capacity of Master Servicer or Sub-Servicer hereunder; (x) none of Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as contemplated by the Transaction Documents; (xi) Seller shall maintain separate space which shall be physically separate from space occupied by an Originator or Performance Guarantor (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor or any Originator) and shall be clearly identified as Seller’s space so it can be identified by outsiders; (xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any Originator, Master Servicer, Performance Guarantor or any Affiliate of any Originator; (xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, Performance Guarantor, each Originator, Master Servicer and each of their respective Affiliates (the foregoing to include, but not be limited to, Seller not using the letterhead or telephone number of any such Person); (xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller shall prepare separate financial statements in compliance with GAAP consistently applied; (xv) if any of Seller, Master Servicer, Performance Guarantor or any Originator shall provide Records relating to Pool Receivables to any creditor of Seller or Master Servicer, Seller or Master Servicer, as the case may be, shall also provide (or cause any Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables are held in trust pursuant to Section 3.4; (xvi) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any Originator, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such Originator, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered; (xvii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, Originator, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing; (xviii) Seller shall maintain adequate capital in light of its contemplated business operations; (xix) Seller shall generally maintain an arm’s-length relationship with each Originator, Performance Guarantor, Master Servicer and its Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and (xx) the Independent Director shall not at any time serve as a trustee in bankruptcy for Seller, Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates. (b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout Date: (i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents. (ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents. (iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents. (iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents. (v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assets. (vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents). (vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing. (viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (vii) above or in Section 7.3 hereof. (ix) Seller shall not have any employees. (x) Seller will provide for not less than ten (10) Business Days’ prior written notice to Administrative Agent of any removal, replacement or appointment of any director that is currently serving or is proposed to be appointed as an Independent Director, such notice to include the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements for an Independent Director set forth in this Agreement and the limited liability company agreement of Seller. (c) Neither Master Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8.
Appears in 4 contracts
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.), Receivables Purchase Agreement (C H Robinson Worldwide Inc)
Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller. No Originator, Master Servicerthat such Originator sold Assets to Seller or that Seller sold Assets to the Administrative Agent;
(ix) None of Originators, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;
(xv) if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
(xvii) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviixviii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviiixix) Seller shall maintain adequate capital in light of its contemplated business operations;
(xixxx) Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xxxxi) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ixviii) Seller shall not have any employees.
(xix) Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
Appears in 2 contracts
Samples: Omnibus Amendment (CHS Inc), Receivables Purchase Agreement (CHS Inc)
Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;; 749037980
(v) Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller. No Originator, Master Servicerthat such Originator sold Assets to Seller or that Seller sold Assets to the Administrative Agent;
(ix) None of Originators, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;; 749037980
(xv) if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
(xvii) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviixviii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviiixix) Seller shall maintain adequate capital in light of its contemplated business operations;
(xixxx) Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xxxxi) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.. 749037980
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ixviii) Seller shall not have any employees.
(xix) Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
Appears in 1 contract
Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller. No Originator, Master Servicerthat such Originator sold Assets to Seller or that Seller pledged Assets to the Administrative Agent;
(ix) None of Originators, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;
(xv) if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
(xvii) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviixviii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviiixix) Seller shall maintain adequate capital in light of its contemplated business operations;
(xixxx) Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xxxxi) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ixviii) Seller shall not have any employees.
(xix) Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
Appears in 1 contract
Corporate Separateness; Related Matters and Covenants. Each of Master MPI, Servicer and Seller covenantcovenants, for the benefit of Purchasers, Agent and the other Secured Parties, until the Final Payout Date as follows:
(a) MPI, Seller and Master Servicer shall assure that Seller, Performance Guarantor, Master Servicer MPI and each Originator (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each Originator, MPI, Performance Guarantor, Master Servicer Guarantor and any of their respective Affiliates, and comply with (and cause to be true and correct) its organizational documents documents, each of the facts and assumptions contained in the opinions of external counsel delivered pursuant to or in connection with the Prior Agreement, this Agreement or any other Transaction Document regarding “true sale” and “substantive consolidation” matters (and any later bring-downs or replacements of such opinions) and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and to permit a determination of the obligees thereon and the time for performance on each of 63 Mylan Seller’s obligations) from those of each CHR Party Originator, MPI, Performance Guarantor and their respective Affiliates other than Seller;
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originator, MPI, Performance Guarantor or any of their respective Affiliates other than SellerAffiliates;
(iii) at least one member of Seller’s Board board of Directors managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board board of Directors managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager, the Agent and each Purchaser Agent;
(iv) the members and Board board of Directors managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originator, MPI, Performance Guarantor or any of their respective Affiliates (except by CHR as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); Affiliates, provided that Master Servicer shall service the Pool Receivables as contemplated by the Transaction Documents;
(vii) Seller shall usesubject to clauses (xvi) and (xix), as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, Performance Guarantor or any Affiliate of any of them, on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Obligors will not be informed in the first instance that Master Servicer, Originators Originator or Performance Guarantor are acting on behalf of Seller. No Originator, Master Servicer, Performance Guarantor or any Affiliates of Master Servicer MPI shall be 64 Mylan appointed as an agent of Seller, except in the capacity of Master Servicer or Sub-Servicer subservicer hereunder;
(xix) none of Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Performance Guarantor nor any Affiliate of Master Servicer, any Originator Servicer or Performance Guarantor will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHRMPI’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as contemplated by the Transaction DocumentsSeller;
(xix) Seller shall maintain a separate space office which shall be physically separate from space occupied by an Originator, Performance Guarantor or any Affiliate of Originator or Performance Guarantor (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor Originator or any Affiliate of Originator) and shall be clearly identified as Seller’s space office so it can be identified by outsiders;
(xiixi) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any MPI, Originator, Master Servicer, Performance Guarantor or any Affiliate of any Originator;
(xiiixii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holdersshareholders, members, managers, Performance Guarantor, each OriginatorMPI, Master Servicer Originator and each of their respective Affiliates (the foregoing to include, but not be limited to, Seller not using the use of separate and distinct letterhead or and telephone number of any such Personnumber(s));
(xivxiii) Master Servicer MPI or Performance Guarantor (or following the consummation of the Specified Acquisition Transaction, New Mylan) may issue consolidated financial statements that will include Seller, but such financial statements shall disclose will contain a footnote to the separateness effect that the Receivables and Related Assets of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR MPI or the Originators to the extent required by GAAPPerformance Guarantor (or, if applicable, New Mylan); in addition Seller shall prepare separate financial statements in compliance with GAAP generally accepted accounting principles consistently applied;
(xvxiv) if any of Seller, Master Servicer, Performance Guarantor or any Originator shall provide Records relating to Pool Receivables to any creditor of Seller or Master Servicer, Seller or Master Servicer, as the case may be, shall also provide (or cause any Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables are held in trust pursuant to Section 3.4;
(xv) Originator’s financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of Originator or of their respective Affiliates;
(xvi) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any Originator, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such Originator, Performance Guarantor or any of their 65 Mylan respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xvii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master property of Servicer, Originator, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoingthem;
(xviii) Seller shall maintain adequate capital in light of its contemplated business operations;
(xix) Seller shall generally maintain an arm’s-length relationship with each Originator, Performance Guarantor, Master Servicer Guarantor and its Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purposeAffiliates; and
(xx) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master Servicer, any Originator, Performance Guarantor Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master ServicerMPI, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout Date:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR MPI in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by will occur in accordance with the Transaction Documents.;
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.;
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.;
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.;
(v) Seller shall not create, assume or suffer to exist any Adverse Claim Lien on any of its assets.assets other than any Lien created pursuant to the Transaction Documents;
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).;
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any 66 Mylan owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner (except, in each case, as otherwise provided herein or in the other than from Transaction Documents), except out of funds received by it under Article III and so long as, in any case, only if (I) the result would not be to directly or indirectly cause any non-compliance with Section 7.3(j7.3(i) or (II) before there exists (or would exist after giving effect thereto, no ) (x) an Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Default or (y) an Unmatured Event of Termination shall have occurred that remains continuing.Default;
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (vii) above or in Section 7.3 hereof.;
(ix) Seller shall not have any employees.; and
(x) Seller will provide for not less than ten (10) Business Days’ prior written notice to Administrative Agent and each Purchaser Agent of any removal, replacement or appointment of any director manager that is currently serving or is proposed to be appointed serve as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master None of MPI, Seller or Servicer nor Seller shall take any action or permit any of their its respective Affiliates to take any action inconsistent with this Section 7.8.
(d) Agent and each Purchaser Agent hereby confirms that the Independent Manager (Xxxxx X. Xxxxxxx) is acceptable to Agent and each Purchaser Agent as of the Closing Date.
Appears in 1 contract
Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) a. Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) i. Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) . except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) . at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) . the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) v. Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) . decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) . no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ix) viii. Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller, that such Originator sold Assets to Seller or that Seller sold Assets to the Administrative Agent;
ix. No OriginatorNone of Originators, Master Servicer, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) x. none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) . Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) . other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) . Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller . CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;
(xv) . if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) . to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
xvii. any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xvii) xviii. Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviii) xix. Seller shall maintain adequate capital in light of its contemplated business operations;
(xix) xx. Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xx) xxi. the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.
(b) b. Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) i. Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) . Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) . Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) . Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) v. Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) . Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) . Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ix) viii. Seller shall not have any employees.
(x) ix. Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) c. Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
Appears in 1 contract
Samples: Omnibus Amendment (CHS Inc)
Corporate Separateness; Related Matters and Covenants. Each of Master Servicer and Seller covenant, until the Final Payout Date as follows:
(a) Seller and Master Servicer shall assure that Seller, Performance Guarantor, Master Servicer and each Originator (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each Originator, Performance Guarantor, Master Servicer and any of their respective Affiliates, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and to permit a determination of the obligees thereon and the time for performance on each of Seller’s obligations) from those of each CHR Party and their respective Affiliates other than Seller;
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party or any of their respective Affiliates other than Seller;
(iii) at least one member of Seller’s Board of Directors shall be an Independent Director and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent Director” as used herein, (ii) that Seller’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 and without the prior written consent of the Independent Director;
(iv) the members and Board of Directors of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent Director. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director in accordance with its limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party or any of their respective Affiliates (except by CHR as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall service the Pool Receivables as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party or any Affiliate of any of them, on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ix) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are acting on behalf of Seller. No Originator, Master Servicer, Performance Guarantor or any Affiliates of Master Servicer shall be appointed as an agent of Seller, except in the capacity of Master Servicer or Sub-Servicer hereunder;
(x) none of Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as contemplated by the Transaction Documents;
(xi) Seller shall maintain separate space which shall be physically separate from space occupied by an Originator or Performance Guarantor (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor or any Originator) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any Originator, Master Servicer, Performance Guarantor or any Affiliate of any Originator;
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, Performance Guarantor, each Originator, Master Servicer and each of their respective Affiliates (the foregoing to include, but not be limited to, Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller shall prepare separate financial statements in compliance with GAAP consistently applied;
(xv) if any of Seller, Master Servicer, Performance Guarantor or any Originator shall provide Records relating to Pool Receivables to any creditor of Seller or Master Servicer, Seller or Master Servicer, as the case may be, shall also provide (or cause any Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables are held in trust pursuant to Section 3.4;
(xvi) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any Originator, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such Originator, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xvii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, Originator, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviii) Seller shall maintain adequate capital in light of its contemplated business operations;
(xix) Seller shall generally maintain an arm’s-length relationship with each Originator, Performance Guarantor, Master Servicer and its Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xx) the Independent Director shall not at any time serve as a trustee in bankruptcy for Seller, Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates.
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout Date:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assets.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (vii) above or in Section 7.3 hereof.
(ix) Seller shall not have any employees.
(x) Seller will provide for not less than ten (10) Business Days’ prior written notice to Administrative Agent of any removal, replacement or appointment of any director that is currently serving or is proposed to be appointed as an Independent Director, such notice to include the identity of the proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements for an Independent Director set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8.
Appears in 1 contract
Samples: Receivables Purchase Agreement (C. H. Robinson Worldwide, Inc.)
Corporate Separateness; Related Matters and Covenants. Each of Master MPI, Servicer and Seller covenantcovenants, for the benefit of Purchasers, Agent and the other Secured Parties, until the Final Payout Date as follows:
(a) MPI, Seller and Master Servicer shall assure that Seller, Performance Guarantor, Master Servicer MPI and each Originator (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each Originator, MPI, Performance Guarantor, Master Servicer Guarantor and any of their respective Affiliates, and comply with (and cause to be true and correct) its organizational documents documents, each of the facts and assumptions contained in the opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP delivered pursuant to Section 5.1(j) regarding “true sale” and “substantive consolidation” matters (and any later bring-downs or replacements of such opinions) and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and to permit a determination of the obligees thereon and the time for performance on each of Seller’s obligations) from those of each CHR Party Originator, MPI, Performance Guarantor and their respective Affiliates other than Seller;
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originator, MPI, Performance Guarantor or any of their respective Affiliates other than SellerAffiliates;
(iii) at least one member of Seller’s Board board of Directors managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board board of Directors managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager, the Agent and each Purchaser Agent;
(iv) the members and Board board of Directors managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originator, MPI, Performance Guarantor or any of their respective Affiliates (except by CHR as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); Affiliates, provided that Master Servicer shall service the Pool Receivables as contemplated by the Transaction Documents;
(vii) Seller shall usesubject to clauses (xvi) and (xix), as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, Performance Guarantor or any Affiliate of any of them, on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Obligors will not be informed in the first instance that Master Servicer, Originators Originator or Performance Guarantor are acting on behalf of Seller. No Originator, Master Servicer, Performance Guarantor or any Affiliates of Master Servicer MPI shall be appointed as an agent of Seller, except in the capacity of Master Servicer or Sub-Servicer subservicer hereunder;
(xix) none of Master Servicer, any Originator, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Performance Guarantor nor any Affiliate of Master Servicer, any Originator Servicer or Performance Guarantor will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHRMPI’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as contemplated by the Transaction DocumentsSeller;
(xix) Seller shall maintain a separate space office which shall be physically separate from space occupied by an Originator, Performance Guarantor or any Affiliate of Originator or Performance Guarantor (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor Originator or any Affiliate of Originator) and shall be clearly identified as Seller’s space office so it can be identified by outsiders;
(xiixi) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any MPI, Originator, Master Servicer, Performance Guarantor or any Affiliate of any Originator;
(xiiixii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holdersshareholders, members, managers, Performance Guarantor, each OriginatorMPI, Master Servicer Originator and each of their respective Affiliates (the foregoing to include, but not be limited to, Seller not using the use of separate and distinct letterhead or and telephone number of any such Personnumber(s));
(xivxiii) Master Servicer MPI or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose will contain a footnote to the separateness effect that the Receivables and Related Assets of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR MPI or the Originators to the extent required by GAAPPerformance Guarantor; in addition Seller shall prepare separate financial statements in compliance with GAAP generally accepted accounting principles consistently applied;
(xvxiv) if any of Seller, Master Servicer, Performance Guarantor or any Originator shall provide Records relating to Pool Receivables to any creditor of Seller or Master Servicer, Seller or Master Servicer, as the case may be, shall also provide (or cause any Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables are held in trust pursuant to Section 3.4;
(xv) Originator’s financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of Originator or of their respective Affiliates;
(xvi) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any Originator, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such Originator, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xvii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master property of Servicer, Originator, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoingthem;
(xviii) Seller shall maintain adequate capital in light of its contemplated business operations;
(xix) Seller shall generally maintain an arm’s-length relationship with each Originator, Performance Guarantor, Master Servicer Guarantor and its Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purposeAffiliates; and
(xx) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master Servicer, any Originator, Performance Guarantor Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master ServicerMPI, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout Date:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR MPI in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by will occur in accordance with the Transaction Documents.;
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.;
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.;
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.;
(v) Seller shall not create, assume or suffer to exist any Adverse Claim Lien on any of its assets.assets other than any Lien created pursuant to the Transaction Documents;
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).;
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner (except, in each case, as otherwise provided herein or in the other than from Transaction Documents), except out of funds received by it under Article III and so long as, in any case, only if (I) the result would not be to directly or indirectly cause any non-compliance with Section 7.3(j7.3(i) or (II) before there exists (or would exist after giving effect thereto, no ) (x) an Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Default or (y) an Unmatured Event of Termination shall have occurred that remains continuing.Default;
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (vii) above or in Section 7.3 hereof.;
(ix) Seller shall not have any employees.; and
(x) Seller will provide for not less than ten (10) Business Days’ prior written notice to Administrative Agent and each Purchaser Agent of any removal, replacement or appointment of any director manager that is currently serving or is proposed to be appointed serve as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master None of MPI, Seller or Servicer nor Seller shall take any action or permit any of their its respective Affiliates to take any action inconsistent with this Section 7.8.
(d) Agent and each Purchaser Agent hereby confirms that the Independent Manager (Xxxxx X. Xxxxxxx) is acceptable to Agent and each Purchaser Agent as of the Closing Date.
Appears in 1 contract
Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall 753697831 provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller. No Originator, Master Servicerthat such Originator sold Assets to Seller or that Seller sold Assets to the Administrative Agent;
(ix) None of Originators, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in 753697831 a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;
(xv) if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
(xvii) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviixviii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviiixix) Seller shall maintain adequate capital in light of its contemplated business operations;
(xixxx) Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xxxxi) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.. 753697831
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ixviii) Seller shall not have any employees.
(xix) Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
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Corporate Separateness; Related Matters and Covenants. Each of Master Seller and Servicer and Seller covenant, until the Final Payout Date Date, as follows:
(a) Seller and Master Servicer shall assure that Seller, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and each Originator Originators (and each of their respective Affiliates) shall observe the applicable legal requirements for the recognition of Seller as a legal entity separate and apart from each of each OriginatorOriginators, CHS, Servicer, Performance Guarantor, Master Servicer Guarantor and any of their respective AffiliatesAffiliates other than Seller, and comply with (and cause to be true and correct) its organizational documents and assuring that each of the following is complied with:
(i) Seller shall maintain (or cause to be maintained) separate company records, records and books of account and financial statements (each of which shall be sufficiently full and 755931971 16509877 complete to permit a determination of Seller’s assets and liabilities and, in the case of such records and books of account, to permit a determination of the obligees thereon and the time for performance on of each of Seller’s obligations) from those of each CHR Party Originators, CHS, Servicer, Performance Guarantor and their respective Affiliates (other than Seller);
(ii) except as otherwise permitted by this Agreement, Seller shall not commingle any of its assets or funds with those of any other CHR Party Originators, CHS, Servicer, Performance Guarantor or any of their respective Affiliates (other than Seller);
(iii) at least one member of Seller’s Board of Directors Managers shall be an Independent Director Manager and the limited liability company agreement of Seller shall provide: (i) for the same definition of “Independent DirectorManager” as used herein, (ii) that Seller’s Board of Directors Managers shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to Seller unless the Independent Director Manager shall approve the taking of such action in writing before the taking of such action and (iii) that the provisions required by clauses (i) and (ii) of this sentence cannot be amended except in accordance with Section 13.1 this Agreement and without the prior written consent of the Independent DirectorManager and the Required Purchasers;
(iv) the members and Board of Directors Managers of Seller shall hold all regular and special meetings appropriate to authorize Seller’s actions. The members and managers of Seller may act from time to time by unanimous written consent or through one or more committees in accordance with Seller’s certificate of formation and its limited liability company agreement. Seller shall not take any Material Actions (as defined in its limited liability company agreement) without the consent of all its managers, including its Independent DirectorManager. Appropriate minutes of all meetings of Seller’s members and managers (and committees thereof) shall be kept by Seller;
(v) Seller shall compensate its Independent Director Manager in accordance with its Seller’s limited liability company agreement;
(vi) decisions with respect to Seller’s business and daily operations shall be independently made by Seller and shall not be dictated by any other CHR Party Originators, CHS, Servicer or any of their respective Affiliates (except by CHR CHS Capital as a member and/or manager of Seller in accordance with Seller’s limited liability company agreement); provided that Master Servicer shall administer, service and collect the Pool Receivables Assets as contemplated by the Transaction Documents;
(vii) Seller shall use, as needed, its own separate stationery;
(viii) no transactions shall be entered between Seller, on the one hand and any other CHR Party Originator, Servicer, CHS, Performance Guarantor or any Affiliate of any of themthem (other than Seller), on the other hand (other than as contemplated hereby and in the other Transaction Documents);
(ixviii) Seller shall act solely in its own name and through its own authorized managers, members, directors, officers and agents, except that, as a general matter, the Account Debtors and Obligors will not be informed in the first instance that Master Servicer, Originators or Performance Guarantor are Servicer is acting on behalf of Seller. No Originator, Master Servicerthat such Originator sold Assets to Seller or that Seller sold Assets to the Administrative Agent; 755931971 16509877
(ix) None of Originators, Performance Guarantor Servicer or any Affiliates of Master Servicer CHS shall be appointed as an agent of Seller, except in the capacity of Master Servicer servicer or Sub-Servicer subservicer hereunder;
(x) none of Master Servicer, any OriginatorOriginators, CHS, Performance Guarantor or any of their respective Affiliates shall advance funds or credit to Seller; and none of Master Servicer, Originators, CHS or any Affiliate of Servicer, Originators, Performance Guarantor nor any Affiliate of Master Servicer, any Originator or Performance Guarantor CHS will otherwise supply funds or credit to, or guarantee any obligation of, Seller except for CHR’s contributions of capital to Seller and the issuance by Seller of Subordinated Notes to Originators as expressly contemplated by the Transaction Documents;
(xi) Seller shall maintain a separate space which shall be physically separate from space occupied by an Originator or Originators, Servicer, Performance Guarantor or any Affiliate of any Originator, Performance Guarantor or Servicer (but may be in a separate space occupied solely by Seller and any Subsidiary of Performance Guarantor that is not an Originator, and is not domiciled in the United States, at the offices of Performance Guarantor CHS or any OriginatorAffiliate of CHS) and shall be clearly identified as Seller’s space so it can be identified by outsiders;
(xii) other than as permitted by the Transaction Documents, Seller shall not guarantee, or otherwise become liable with respect to, any obligation of any OriginatorCHS, Master Originators, Servicer, Performance Guarantor or any Affiliate of any Originatorthereof (other than Seller);
(xiii) Seller shall at all times hold itself out to the public under Seller’s own name as a legal entity separate and distinct from its equity holders, members, managers, CHS, Originators, Servicer, Performance Guarantor, each Originator, Master Servicer Guarantor and each of their respective Affiliates (other than Seller) (the foregoing to include, but not be limited to, include Seller not using the letterhead or telephone number of any such Person);
(xiv) Master Servicer or Performance Guarantor may issue consolidated financial statements that will include Seller, but such financial statements shall disclose the separateness of Seller and that the Pool Receivables are owned by Seller and are not available to creditors of CHR or the Originators to the extent required by GAAP; in addition Seller CHS shall prepare separate its financial statements in compliance with GAAP consistently applied;
(xv) if any of Seller, Master CHS, Servicer, Performance Guarantor or any Originator Originators shall provide Records relating any information with respect to the Pool Receivables Assets to any creditor of Seller Seller, CHS, Servicer, Performance Guarantor or Master Servicersuch Originator, Seller or Master Servicer, as the case may be, shall also provide (or cause any such Originator to provide) to such creditor a notice indicating that the Collections relating to such Pool Receivables Assets are held in trust pursuant to Section 3.4for the Affected Parties;
(xvi) to the extent required by GAAP, CHS’s financial statements shall disclose the separateness of Seller and that the Pool Assets that are owned by Seller are not available to creditors of CHS or its Affiliates other than Seller;
(xvii) any allocations of direct, indirect or overhead expenses (including, but not limited to, overhead for shared office space) for items shared between Seller and any OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates that are not included as part of the Master Servicing Fee shall be made among Seller and such OriginatorOriginators, Servicer, CHS, Performance Guarantor or any of their respective Affiliates to the extent practical on the basis of actual use or value of services rendered and otherwise on a basis reasonably related to actual use or the value of services rendered;
(xviixviii) Seller shall not be named, directly or indirectly, as a contingent beneficiary or loss payee on any insurance policy covering the Master Servicer, OriginatorOriginators, CHS, Performance Guarantor or any Affiliate of any of them (other 755931971 16509877 than Seller) other than insurance policies entered into in the ordinary course of business covering other Affiliates of any of the foregoing;
(xviiixix) Seller shall maintain adequate capital in light of its contemplated business operations;
(xixxx) Seller shall generally maintain an arm’s-length relationship with each OriginatorOriginators, Servicer, CHS, Performance Guarantor, Master Servicer Guarantor and its their respective Affiliates and each transaction entered into with the Seller shall be undertaken in good faith for a bona fide business purpose; and
(xxxxi) the Independent Director Manager shall not at any time serve as a trustee in bankruptcy for Seller, Master ServicerCHS, any OriginatorOriginators, Performance Guarantor Guarantor, Servicer or any of their respective Affiliates.
(b) Seller agrees that (and Master Servicer, in its capacity as the sole member of Seller, agrees that it will cause Seller to comply therewith), until the Final Payout DateServicer agree that:
(i) Seller shall not (A) issue any security of any kind except certificates evidencing membership interests issued to CHR CHS Capital in connection with its formation, or (B) incur, assume, guarantee or otherwise become directly or indirectly liable for or in respect of any Debt or obligation other than the Subordinated Notes and otherwise as expressly permitted by the Transaction Documents.
(ii) Seller shall not sell, pledge or dispose of any of its assets, except as permitted by, or as provided in, the Transaction Documents.
(iii) Seller shall not purchase any asset (or make any investment, by share purchase, loan or otherwise) except as permitted by, or as provided in, the Transaction Documents.
(iv) Seller shall not engage in any activity (whether or not pursued for gain or other pecuniary advantage) other than as permitted by the Transaction Documents.
(v) Seller shall not create, assume or suffer to exist any Adverse Claim on any of its assetsassets other than any Adverse Claim created pursuant to the Transaction Documents.
(vi) Seller shall not make any payment, directly or indirectly, to, or for the account or benefit of, any owner of any Voting Stock, security interest or equity interest in Seller or any Affiliate of any such owner (except, in each case, as expressly permitted by the Transaction Documents).
(vii) Seller shall not make, declare or otherwise commence or become obligated in respect of, any dividend, stock or other security redemption or purchase, distribution or other payment to, or for the account or benefit of, any owner of any Voting Stock or other equity interest, security interest or equity interest in Seller to any such owner or any Affiliate of any such owner other than from funds received by it under Article III and so long as, in any case, (I) the result would not directly or indirectly cause any non-compliance with Section 7.3(j) or (II) before or after giving effect thereto, no Event of Termination shall have occurred that has not been waived in accordance with this Agreement and no Unmatured Event of Termination shall have occurred that remains continuing.
(viii) Seller shall not acquiesce in, or direct Master Servicer or any other agent to take, any action that is prohibited to be taken by Seller in clauses (i) through (viivi) above or in Section 7.3 hereofabove.
(ixviii) Seller shall not have any employees.
(xix) Seller will provide for not less than ten (10) Business Days’ prior written notice to the Administrative Agent of any removal, removal or replacement or appointment of any director person that is currently serving or is proposed to be appointed as an Independent DirectorManager, such notice to include the identity of the proposed replacement Independent DirectorManager, together with a certification that such replacement satisfies 755931971 16509877 the requirements for an Independent Director Manager set forth in this Agreement and the limited liability company agreement of Seller.
(c) Neither Master Seller nor Servicer nor Seller shall take any action or permit any of their respective Affiliates to take any action inconsistent with this Section 7.8subsection (a) or (b) above.
Appears in 1 contract
