Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms: (a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein. (b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents. (c) The Trust shall not form, or cause to be formed, any subsidiaries. (d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part. (e) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholder. (f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity. (g) The Trust shall maintain trust records, accounts, books of account and bank accounts separate from those of any other person not commingle its trust records, accounts, books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust. (h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law. (i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents. (j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person. (k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space. (l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act. (m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust. (n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder. (o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name. (p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause). (q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust). (r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest. (s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records. (t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code. (u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates. (v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation). (w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 2 contracts
Samples: Trust Agreement (Consolidation Loan Funding Ii, LLC), Trust Agreement (Higher Education Funding I)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Business Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(ed) The Trust shall not be, become or hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personothers, and the Trust and the Certificateholders will not act as agents for each other other.
(e) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust's size and the Trust will not act as the agent character and in light of any Person in control of a Certificateholderits proposed business operations and liabilities.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain business trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its business trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documentsherein.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii) maintain stationery, invoices and checks separate from any other personthat of the Certificateholders, (iii) pay all of its taxes, own expenses and liabilities only from its own fundsfunds to the extent available, (iv) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s 's length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii) maintain separate financial statements from any other Personstatements. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to to, or make an investment in, any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), Person (B) except for investments in Investment Securities made pursuant to the Indenturemake any capital expenditures, not make an investment in (C) take any Bankruptcy Action, or (D) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the benefit obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory business trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Business Trust Act.
(ml) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(nm) The Trust shall maintain financial statements separate form any other Person. The annual financial statements of the Trust shall disclose the effects of these its transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state contain a footnote stating that the assets of any of the Trust shall not be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state disclose that the assets of the Trust are or will be not available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to pay the expenses of and to indemnify the Delaware Trustee).
(on) Except for the Delaware Trustee’s 's standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its namePerson.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 2 contracts
Samples: Trust Agreement (College Loan Corp Trust I), Trust Agreement (College Loan Corp Trust I)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(ai) The Trust Seller shall not engage in any business or activity other than in connection with or relating to the activities permitted hereinpurchase of auto loan receivables and the issuance of debt secured by, or certificates of participation in, a pool of auto loan receivables.
(bii) The Trust Seller shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entityentity unless (A) the entity (if other than the Seller) formed or surviving such consolidation or merger, or pledge its that acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume in form satisfactory to any other entitythe Majority Certificateholders, except as may the performance of every covenant on the part of the Seller to be permitted performed or observed pursuant to this Agreement and the Basic DocumentsPurchase Agreement, (B) immediately after giving effect to such transaction, no default or event of default under this Agreement shall have occurred and be continuing, (C) the Seller shall have delivered to each Certificateholder and the Trustee an Officers' Certificate and an opinion of independent counsel, each stating that such consolidation, merger, conveyance or transfer comply with this Agreement and (D) the Majority Certificateholders shall have consented thereto.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust Seller shall not dissolve or liquidate, in whole or in part, except (A) as permitted in paragraph (ii) above or (B) with the prior written consent of the Trustee and the Majority Certificateholders.
(eiv) The Trust funds and other assets of the Seller shall not bebe commingled with those of any other corporation, become entity or Person, including, but not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personincluding, but not limited to, the Trust and debts of the Certificateholders will not act as agents for each other and parent or Affiliates of the Trust will not act as the agent of any Person in control of a CertificateholderSeller.
(fvi) The Trust Seller shall not form, or cause to be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its Trust corporate name and through its the duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(gviii) At all times, except in the case of a temporary vacancy, which shall promptly be filled, the Seller shall have on its board of directors at least two directors each of whom qualifies as an "Independent Director" as such term is defined in the Seller's Certificate of Incorporation as originally filed with the Delaware Secretary of State's office.
(ix) The Trust Seller shall maintain trust records, accounts, records and books of account of the Seller and bank accounts separate from those of any other person shall not commingle its trust records, accounts, such records and books of account or bank accounts with the organizational or other records, accounts records and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the TrustPerson. The books of the Trust Seller may be kept (subject to any provision contained in any applicable the statutes) inside or outside the State of Delaware New Jersey at such place or places as may be designated from time to time by the Trustboard of directors of the Seller.
(hx) The Trust board of directors of the Seller shall take such actions as may be necessary hold appropriate meetings to authorize all of its actions as may corporate actions. Regular meetings of the board of directors of the Seller shall be required by lawheld not less frequently than three times per annum.
(ixi) This Trust Agreement Meetings of the shareholders of the Seller shall be held not less frequently than one time per annum.
(xii) The Seller shall not amend, alter, change or repeal any provision contained in this Section 8.07(a) without (A) the affirmative vote in favor thereof of eighty percent (80%) of the then outstanding shares of the Seller entitled to vote thereon and Sections 2.03(B) the prior written consent of the Trustee and the Majority Certificateholders.
(xiii) The Seller shall not, 4.03 without the affirmative unanimous vote of the whole board of directors of the Seller (including at least one director referred to in clause (viii) above), institute any proceedings to adjudicate the Seller a bankrupt or insolvent, consent to the institution of bankruptcy or insolvency proceedings against the Seller, file a petition seeking or consenting to reorganization or relief under any applicable federal or State law relating to bankruptcy, consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Seller or a substantial part of its property or admit its inability to pay its debts generally as they become due or authorize any of the foregoing to be done or taken on behalf of the Seller.
(xiv) The Seller is not and 11.08 hereof shall not be amended, altered, changed involved in the day-to- day or repealed, except as may be permitted pursuant to the Basic Documentsother management of its parent or any of its Affiliates.
(jxv) Other than the purchase and sale or pledge of assets as provided in this Agreement and related agreements with respect to this transaction and other transactions relating to the purchase of auto loan receivables and the issuance of debt or certificates of participation as contemplated by the Amended and Restated Master Trust Agreement, the Seller shall engage in no other transactions with any of its Affiliates.
(xvi) Seller shall maintain a separate business office and telephone number from any of its Affiliates.
(xvii) Seller's financial statements shall reflect its separate legal existence from any of its Affiliates.
(xviii) The Trust Seller will not amend its Certificate of Incorporation in any respect material to the Certificateholders.
(xix) The Seller shall use separate invoices, stationery and checks.
(ixx) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust Seller shall not (A) pledge any property suffer or permit the credit or assets of Aegis Finance to be held out as available for the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course obligations of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other PersonSeller.
(kxxi) The Trust Seller shall allocate fairly and reasonably enter into transactions with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, Aegis Finance or other compensation paid for shared or leased office spaceits affiliates only on commercially reasonable terms.
(lxxii) The Trust Seller shall not incur or issue any "Obligation" (ias such term is defined in its Certificate of Incorporation) has maintained in contravention of the limitations set forth therein.
(xxiii) The Seller shall not issue any "Securities" or incur or issue any "Obligations" (as such terms are defined in its Certificate of Incorporation) under any other pooling and shall servicing agreement, purchase agreement or otherwise, unless such agreement contains an express provision substantially similar to Section 13.10 hereof limiting recourse to the Seller to the assets involved in the transaction to which such agreement relates.
(xxiv) The Seller will maintain its valid existence, rights and franchises corporate existence in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsDelaware; (ii) has observed and shall will observe all corporate procedures required by this Trust Agreement its Certificate of Incorporation and Bylaws (the "Bylaws") and the laws of the State of Delaware; and (iii) has otherwise complied and shall will otherwise comply with the provisions of this Trust Agreement its Certificate of Incorporation and Bylaws and the Delaware Statutory Trust ActGeneral Corporation Law.
(mxxv) Financial and operational services, including, without limitation, maintenance of the Seller's books and records of the Trust and preparation of the financial statements shall records, will be performed on behalf of the Trust Seller by independent contractors. The entity performing Seller will make payments to such services or incurring expenses in connection with such services for the Trust shall receive compensation independent contractors for such services rendered or expenses incurred on its behalf in an amount equal to the fair value of such services and expenses. To the extent that the Trust Seller leases premises from any Certificateholder Aegis Finance or Affiliates of any Certificateholderits Affiliates, the Trust shall Seller will pay appropriate compensation or rental. The Trust shall Seller will be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator Seller will provide for the Trust and the reasonably anticipated its operating expenses and liabilities of the Trustfrom its own funds.
(nxxvi) The annual financial statements of the Trust shall Seller will disclose the effects of these transactions in accordance with generally accepted accounting principles. The Any consolidated financial statements which consolidate the assets and earnings of any Certificateholder Aegis Finance with those of the Trust shall Seller will contain a footnote stating that the assets of Aegis Finance will not state be available to creditors of Seller. Audited financial statements of the Seller will disclose that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall Seller are not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a CertificateholderAegis Finance.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Samples: Master Trust Agreement (Aegis Consumer Funding Group Inc)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust Originator shall not engage in any business or activity other than in connection with or relating to the activities issuance of the Class __ [Certificates] [Notes], except as otherwise may be permitted hereinherein or in the Articles of Incorporation of the Originator.
(b) The Trust Originator shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entityentity unless (i) the entity (if other than the Originator) formed or surviving such consolidation or merger, or pledge its that acquires by conveyance or transfer the properties and assets of the Originator substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume in form satisfactory to any other entitythe Rating Agency, except as may the due and punctual payment of the Class __ [Certificates] [Notes] then outstanding and the performance of every covenant on the part of the Originator to be permitted performed or observed pursuant to this Agreement and the Basic Documents[Pooling and Servicing Agreement] [Trust Agreement], (ii) immediately after giving effect to such transaction, no default or event of default under this Agreement shall have occurred and be continuing and (iii) the Originator shall have delivered to the Rating Agency and the Trustee an officer's certificate and an opinion of counsel, each stating that such consolidation, merger, conveyance or transfer comply with this Agreement.
(c) The Trust shall not form, or cause to be formed, So long as any subsidiaries.
(d) To the fullest extent permitted by lawClass A [Certificates] [Notes] are outstanding, the Trust Originator shall not dissolve or liquidate, in whole or in part, except (i) as permitted in paragraph (b) above or (ii) with the prior written consent of the Trustee and prior written confirmation from the Rating Agency (a copy of which shall be provided to the Trustee by the Originator) that such dissolution or liquidation will have no adverse effect on the rating assigned to the Class __ [Certificates] [Notes].
(ed) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholder.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain trust records, accounts, books of account and bank accounts separate from those of any other person not commingle its trust records, accounts, books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will Originator shall not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall corporation, entity or Person, including, but not enter into any contract limited to, the parents or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each affiliates of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause)Originator.
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Samples: Receivables Acquisition Agreement (Advanta Auto Finance Corp)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the The Trust shall not dissolve or liquidate, in whole or in part.
(e) The Trust shall not be, become or hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personothers, and the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholderother.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii) maintain stationery, invoices and checks separate from any other personthat of the Certificateholders, (iii) pay all of its taxes, own expenses and liabilities only from its own fundsfunds to the extent available, (iv) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to to, or make an investment in of for the benefit of, any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust)Person, (B) make any capital expenditures, (C) take any Bankruptcy Action, or (D) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the obligations of, or pay from its funds, the obligations or indebtedness of, or (except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit ofTransaction Documents), or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to indemnify the Delaware Trustee under this Trust Agreement).
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its namePerson.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and or their respective Affiliates affiliates pursuant to written, enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clauseagreement).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the The Trust shall, and none of them shall have the authority to, not enter into any agreements, written or otherwise, pursuant to which any the Certificateholder or any of its Affiliates agrees to extend credit, make loans credit or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Business Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(ed) The Trust shall not be, become or hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personothers, and the Trust and the Certificateholders will not act as agents for each other other.
(e) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust’s size and the Trust will not act as the agent character and in light of any Person in control of a Certificateholderits proposed business operations and liabilities.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain business trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its business trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documentsherein.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii) maintain stationery, invoices and checks separate from any other personthat of the Certificateholders, (iii) pay all of its taxes, own expenses and liabilities only from its own fundsfunds to the extent available, (iv) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii) maintain separate financial statements from any other Personstatements. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to to, or make an investment in, any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), Person (B) except for investments in Investment Securities made pursuant to the Indenturemake any capital expenditures, not make an investment in (C) take any Bankruptcy Action, or (D) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the benefit obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory business trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Business Trust Act.
(ml) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(nm) The Trust shall maintain financial statements separate form any other Person. The annual financial statements of the Trust shall disclose the effects of these its transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state contain a footnote stating that the assets of any of the Trust shall not be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state disclose that the assets of the Trust are or will be not available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to pay the expenses of and to indemnify the Delaware Trustee).
(on) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its namePerson.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Business Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(ed) The Trust shall not be, become or hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personothers, and the Trust and the Certificateholders will not act as agents for each other other.
(e) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of the Trust’s size and the Trust will not act as the agent character and in light of any Person in control of a Certificateholderits proposed business operations and liabilities.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain business trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its business trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii) maintain stationery, invoices and checks separate from any other personthat of the Certificateholders, (iii) pay all of its taxes, own expenses and liabilities only from its own fundsfunds to the extent available, (iv) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii) maintain separate financial statements from any other Personstatements. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to to, or make an investment in, any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), Person (B) except for investments in Investment Securities made pursuant to the Indenturemake any capital expenditures, not make an investment in (C) take any Bankruptcy Action, or (D) guarantee (directly or indirectly), endorse or otherwise become contingently liable (directly or indirectly) for the benefit obligations of, or own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory business trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Business Trust Act.
(ml) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(nm) The Trust shall maintain financial statements separate form any other Person. The annual financial statements of the Trust shall disclose the effects of these its transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state contain a footnote stating that the assets of any of the Trust shall not be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state disclose that the assets of the Trust are or will be not available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to pay the expenses of and to indemnify the Delaware Trustee).
(on) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its namePerson.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(e) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholder.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain trust records, accounts, books of account and bank accounts separate from those of any other person not commingle its trust records, accounts, books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s or the Indenture Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Trust Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(ai) The Trust Seller shall not engage in any business or activity other than in connection with or relating to the activities permitted hereinpurchase of auto loan receivables and the issuance of debt secured by, or certificates of participation in, a pool of auto loan receivables.
(bii) The Trust Seller shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entityentity unless (A) the entity (if other than the Seller) formed or surviving such consolidation or merger, or pledge its that acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume in form satisfactory to any other entitythe Majority Certificateholders, except as may the performance of every covenant on the part of the Seller to be permitted performed or observed pursuant to this Agreement and the Basic DocumentsPurchase Agreement, (B) immediately after giving effect to such transaction, no default or event of default under this Agreement shall have occurred and be continuing, (C) the Seller shall have delivered to each Certificateholder and the Trustee an Officers' Certificate and an opinion of independent counsel, each stating that such consolidation, merger, conveyance or transfer comply with this Agreement and (D) the Majority Certificateholders shall have consented thereto.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust Seller shall not dissolve or liquidate, in whole or in part, except (A) as permitted in paragraph (ii) above or (B) with the prior written consent of the Trustee and the Majority Certificateholders.
(eiv) The Trust funds and other assets of the Seller shall not bebe commingled with those of any other corporation, become entity or Person, including, but not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personincluding, but not limited to, the Trust and debts of the Certificateholders will not act as agents for each other and parent or Affiliates of the Trust will not act as the agent of any Person in control of a CertificateholderSeller.
(fvi) The Trust Seller shall not form, or cause to be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its Trust corporate name and through its the duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(gviii) At all times, except in the case of a temporary vacancy, which shall promptly be filled, the Seller shall have on its board of directors at least two directors each of whom qualifies as an "Independent Director" as such term is defined in the Seller's Certificate of Incorporation as originally filed with the Delaware Secretary of State's office.
(ix) The Trust Seller shall maintain trust records, accounts, records and books of account of the Seller and bank accounts separate from those of any other person shall not commingle its trust records, accounts, such records and books of account or bank accounts with the organizational or other records, accounts records and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the TrustPerson. The books of the Trust Seller may be kept (subject to any provision contained in any applicable the statutes) inside or outside the State of Delaware New Jersey at such place or places as may be designated from time to time by the Trustboard of directors of the Seller.
(hx) The Trust board of directors of the Seller shall take such actions as may be necessary hold appropriate meetings to authorize all of its actions as may corporate actions. Regular meetings of the board of directors of the Seller shall be required by lawheld not less frequently than three times per annum.
(ixi) This Trust Agreement Meetings of the shareholders of the Seller shall be held not less frequently than one time per annum.
(xii) The Seller shall not amend, alter, change or repeal any provision contained in this Section 8.07(a) without (A) the affirmative vote in favor thereof of eighty percent (80%) of the then outstanding shares of the Seller entitled to vote thereon and Sections 2.03(B) the prior written consent of the Trustee and the Majority Certificateholders.
(xiii) The Seller shall not, 4.03 without the affirmative unanimous vote of the whole board of directors of the Seller (including at least one director referred to in clause (viii) above), institute any proceedings to adjudicate the Seller a bankrupt or insolvent, consent to the institution of bankruptcy or insolvency proceedings against the Seller, file a petition seeking or consenting to reorganization or relief under any applicable federal or State law relating to bankruptcy, consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Seller or a substantial part of its property or admit its inability to pay its debts generally as they become due or authorize any of the foregoing to be done or taken on behalf of the Seller.
(xiv) The Seller is not and 11.08 hereof shall not be amended, altered, changed involved in the day-to- day or repealed, except as may be permitted pursuant to the Basic Documentsother management of its parent or any of its Affiliates.
(jxv) Other than the purchase and sale or pledge of assets as provided in this Agreement and related agreements with respect to this transaction and other transactions relating to the purchase of auto loan receivables and the issuance of debt or certificates of participation as contemplated by the Master Trust Agreement, the Seller shall engage in no other transactions with any of its Affiliates.
(xvi) Seller shall maintain a separate business office and telephone number from any of its Affiliates.
(xvii) Seller's financial statements shall reflect its separate legal existence from any of its Affiliates.
(xviii) The Trust Seller will not amend its Certificate of Incorporation in any respect material to the Certificateholders.
(xix) The Seller shall use separate invoices, stationery and checks.
(ixx) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust Seller shall not (A) pledge any property suffer or permit the credit or assets of Aegis Finance to be held out as available for the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course obligations of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other PersonSeller.
(kxxi) The Trust Seller shall allocate fairly and reasonably enter into transactions with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, Aegis Finance or other compensation paid for shared or leased office spaceits affiliates only on commercially reasonable terms.
(lxxii) The Trust Seller shall not incur or issue any "Obligation" (ias such term is defined in its Certificate of Incorporation) has maintained in contravention of the limitations set forth therein.
(xxiii) The Seller shall not issue any "Securities" or incur or issue any "Obligations" (as such terms are defined in its Certificate of Incorporation) under any other pooling and shall servicing agreement, purchase agreement or otherwise, unless such agreement contains an express provision substantially similar to Section 13.10 hereof limiting recourse to the Seller to the assets involved in the transaction to which such agreement relates.
(xxiv) The Seller will maintain its valid existence, rights and franchises corporate existence in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsDelaware; (ii) has observed and shall will observe all corporate procedures required by this Trust Agreement its Certificate of Incorporation and Bylaws (the "Bylaws") and the laws of the State of Delaware; and (iii) has otherwise complied and shall will otherwise comply with the provisions of this Trust Agreement its Certificate of Incorporation and Bylaws and the Delaware Statutory Trust ActGeneral Corporation Law.
(mxxv) Financial and operational services, including, without limitation, maintenance of the Seller's books and records of the Trust and preparation of the financial statements shall records, will be performed on behalf of the Trust Seller by independent contractors. The entity performing Seller will make payments to such services or incurring expenses in connection with such services for the Trust shall receive compensation independent contractors for such services rendered or expenses incurred on its behalf in an amount equal to the fair value of such services and expenses. To the extent that the Trust Seller leases premises from any Certificateholder Aegis Finance or Affiliates of any Certificateholderits Affiliates, the Trust shall Seller will pay appropriate compensation or rental. The Trust shall Seller will be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator Seller will provide for the Trust and the reasonably anticipated its operating expenses and liabilities of the Trustfrom its own funds.
(nxxvi) The annual financial statements of the Trust shall Seller will disclose the effects of these transactions in accordance with generally accepted accounting principles. The Any consolidated financial statements which consolidate the assets and earnings of any Certificateholder Aegis Finance with those of the Trust shall Seller will contain a footnote stating that the assets of Aegis Finance will not state be available to creditors of Seller. Audited financial statements of the Seller will disclose that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall Seller are not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a CertificateholderAegis Finance.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Samples: Master Trust Agreement (Aegis Consumer Funding Group Inc)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(e) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholder.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain trust records, accounts, books of account and bank accounts separate from those of any other person not commingle its trust records, accounts, books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Trust Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(ai) The Trust Seller shall not engage in any business or activity other than in connection with or relating to the activities permitted hereinpurchase of auto loan receivables and the issuance of rated debt secured by, or certificates of participation in, a pool of auto loan receivables.
(bii) The Trust Seller shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entityentity unless (A) the entity (if other than the Seller) formed or surviving such consolidation or merger, or pledge its that acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume in form satisfactory to any other entitythe Rating Agency and the Majority Certificateholders, except as may the performance of every covenant on the part of the Seller to be permitted performed or observed pursuant to this Agreement and the Basic DocumentsPurchase Agreement, (B) immediately after giving effect to such transaction, no default or event of default under this Agreement shall have occurred and be continuing and (C) the Seller shall have delivered to the Rating Agency, each Certificateholder and the Trustee an Officers' Certificate and an opinion of independent counsel, each stating that such consolidation, merger, conveyance or transfer comply with this Agreement.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust Seller shall not dissolve or liquidate, in whole or in part, except (A) as permitted in paragraph (ii) above or (B) with the prior written consent of the Trustee and prior written confirmation from the Rating Agency (a copy of which shall be provided to the Trustee and each Certificateholder by the Seller) that such dissolution or liquidation will have no adverse effect on the rating assigned to the Rated Certificates.
(eiv) The Trust funds and other assets of the Seller shall not bebe commingled with those of any other corporation, become entity or Person, including, but not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personincluding, but not limited to, the Trust and debts of the Certificateholders will not act as agents for each other and parent or Affiliates of the Trust will not act as the agent of any Person in control of a CertificateholderSeller.
(fvi) The Trust Seller shall not form, or cause to be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its Trust corporate name and through its the duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(gviii) At all times, except in the case of a temporary vacancy, which shall promptly be filled, the Seller shall have on its board of directors at least one director who qualifies as an "Independent Director" as such term is defined in the Seller's Certificate of Incorporation as originally filed with the Delaware Secretary of State's office.
(ix) The Trust Seller shall maintain trust records, accounts, records and books of account of the Seller and bank accounts separate from those of any other person shall not commingle its trust records, accounts, such records and books of account or bank accounts with the organizational or other records, accounts records and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the TrustPerson. The books of the Trust Seller may be kept (subject to any provision contained in any applicable the statutes) inside or outside the State of Delaware New Jersey at such place or places as may be designated from time to time by the Trustboard of directors of the Seller.
(hx) The Trust board of directors of the Seller shall take such actions as may be necessary hold appropriate meetings to authorize all of its actions as may corporate actions. Regular meetings of the board of directors of the Seller shall be required by lawheld not less frequently than three times per annum.
(ixi) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof Meetings of the shareholders of the Seller shall be held not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documentsless frequently than one time per annum.
(jxii) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust Seller shall not amend, alter, change or repeal any provision contained in this Section 8.07(a) without (A) pledge any property or assets the affirmative vote in favor thereof of eighty percent (80%) of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course then outstanding shares of the activities of the Trust), Seller entitled to vote thereon; (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for prior written consent of the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, Trustee and the Majority Certificateholders; and (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay prior written confirmation from its funds, the obligations or liabilities of any other PersonRating Agency that the rating on the Rated Certificates will not be impaired.
(kxiii) The Trust Seller shall allocate fairly and reasonably with any other Person expenses that are shared with such Person includingnot, without limitationthe affirmative unanimous vote of the whole board of directors of the Seller (including at least one director referred to in clause (viii) above), institute any overheadproceedings to adjudicate the Seller a bankrupt or insolvent, rentconsent to the institution of bankruptcy or insolvency proceedings against the Seller, file a petition seeking or consenting to reorganization or relief under any applicable federal or State law relating to bankruptcy, consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other compensation paid for shared or leased office space.
(lsimilar official) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State Seller or a substantial part of Delaware and will obtain and preserve its qualification property or admit its inability to do business in each jurisdiction in which such qualification is pay its debts generally as they become due or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws authorize any of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall foregoing to be performed done or taken on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the TrustSeller.
(nxiv) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets Seller is not and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into involved in the Trust).
(r) None day-to-day or other management of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder its parent or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(vxv) Except pursuant Other than the purchase and sale or pledge of assets as provided in this Agreement and related agreements with respect to this transaction and other transactions relating to the Basic Documents purchase of auto loan receivables and trade payables incurred the issuance of rated debt or rated certificates of participation, the Seller shall engage in no other transactions with any of its Affiliates.
(xvi) Seller shall maintain a separate business office and telephone number from any of its Affiliates.
(xvii) Seller's financial statements shall reflect its separate legal existence from any of its Affiliates.
(xviii) The Seller will not amend its Certificate of Incorporation in any respect material to the ordinary course Certificateholders without the consent of the activities Rating Agency.
(xix) The Seller shall use separate invoices, stationery and checks.
(xx) The Seller shall not suffer or permit the credit or assets of Aegis Finance to be held out as available for the obligations of the Trust, the Trust Seller.
(xxi) The Seller shall enter into transactions with Aegis Finance or its affiliates only on commercially reasonable terms.
(xxii) The Seller shall not incur or issue any debt, secured or unsecured, direct or contingent "Obligation" (including, without limitation, guaranteeing any obligation)as such term is defined in its Certificate of Incorporation) in contravention of the limitations set forth therein.
(wxxiii) To The Seller shall not issue any "Securities" or incur or issue any "Obligations" (as such terms are defined in its Certificate of Incorporation) under any other pooling and servicing agreement, purchase agreement or otherwise, unless such agreement contains an express provision substantially similar to Section 13.10 hereof limiting recourse to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere Seller to the assets involved in this Trust Agreement, not take or refrain from taking any act the transaction to which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereofsuch agreement relates.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aegis Consumer Funding Group Inc)
Covenants Regarding Operations. (a) Notwithstanding anything any other provision to the contrary herein, or any power conferred on the Delaware Trustee pursuant to of this Trust Agreement or any other agreement, document or instrument executed by the Delaware Statutory Trust Actand notwithstanding any prior termination of this Trust Agreement, so the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture has not terminated is in accordance with its termseffect, and except as otherwise provided in the Indenture and the Transaction Documents:
(ai) The Trust shall not engage in any business or activity other than in connection with or relating to the purchase or acquisition and ownership of the Trust Estate, the grant of such Trust Estate to the Trustee and the activities permitted hereinspecified in Section 2.05.
(bii) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, entity except as may be permitted pursuant to provided in the Basic Transaction Documents.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(eiv) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, and the Trust and the Certificateholders Sponsor (or any other Certificateholder) will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholderother.
(fv) The Trust shall not form, or cause to be formed, any subsidiaries.
(vi) The Trust shall act solely in its Trust name and through its duly authorized officers Authorized Officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(gvii) The Trust shall maintain statutory trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its statutory trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(hviii) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(iix) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Transaction Documents.
(jx) The Trust shall (i1) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii2) maintain stationery, invoices and checks separate from that of any other personPerson, (iii3) pay all of its taxes, own expenses and liabilities only from its own funds, (iv4) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v5) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi6) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii7) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Transaction Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust)to, (B) except for investments in Investment Securities made pursuant to the Indenture, not or make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (CB) make any capital expenditures, (DC) subject to the fullest extent permitted by lawSection 5.06, take any Bankruptcy Action, or (ED) guarantee (directly or indirectly), endorse, acquire, assume endorse or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities indebtedness of, or (except pursuant to the Transaction Documents) own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person.
(kxi) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(lxii) The Trust (iA) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (iiB) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iiiC) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust ActStatute.
(mxiii) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors, including, without limitation, employees of the Administrator or its affiliates. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any a Certificateholder or Affiliates affiliates of any a Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with into the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(nxiv) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to indemnify the Delaware Trustee under this Trust Agreement).
(oxv) The Trust will not guarantee any indebtedness of or make loans to a Certificateholder or its affiliates.
(xvi) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will shall be maintained as identifiable funds and assets held in its namethe name of the Trust.
(pxvii) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and or their respective Affiliates affiliates pursuant to written, enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clauseagreement).
(qxviii) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(rxix) None of the Trust, any Certificateholder or any Person on behalf of the The Trust shall, and none of them shall have the authority to, not enter into any agreements, written or otherwise, pursuant to which any the Certificateholder or any of its Affiliates agrees to extend credit, make loans credit or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Samples: Trust Agreement (Gmac Elf LLC)
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(a) The Trust shall not engage in any business or activity other than in connection with or relating to the activities permitted herein.
(b) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, except as may be permitted pursuant to the Basic Documents.
(c) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(e) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, the Trust and the Certificateholders will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholder.
(f) The Trust shall act solely in its Trust name and through its duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(g) The Trust shall maintain trust records, accounts, books of account and bank accounts separate from those of any other person not commingle its trust records, accounts, books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(h) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(i) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documents.
(j) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust), (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (C) make any capital expenditures, (D) to the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities of any other Person.
(k) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(l) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(n) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Trust Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(r) None of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Covenants Regarding Operations. Notwithstanding anything to the contrary herein, or any power conferred on the Delaware Trustee pursuant to this Trust Agreement or the Delaware Statutory Trust Act, so long as the Indenture has not terminated in accordance with its terms:
(ai) The Trust Seller shall not engage in any business or activity other than in connection with or relating to the activities permitted hereinpurchase of auto loan receivables and the issuance of rated debt secured by, or certificates of participation in, a pool of auto loan receivables.
(bii) The Trust Seller shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entityentity unless (A) the entity (if other than the Seller) formed or surviving such consolidation or merger, or pledge its that acquires by conveyance or transfer the properties and assets of the Seller substantially as an entirety, shall be organized and existing under the laws of the United States of America or any State thereof or the District of Columbia, and shall expressly assume in form satisfactory to any other entityeach Rating Agency, except as may if any, and the Majority Certificateholders, the performance of every covenant on the part of the Seller to be permitted performed or observed pursuant to this Agreement and the Basic DocumentsPurchase Agreement, (B) immediately after giving effect to such transaction, no default or event of default under this Agreement shall have occurred and be continuing and (C) the Seller shall have delivered to each Rating Agency, if any, each Certificateholder and the Trustee an Officers' Certificate and an opinion of independent counsel, each stating that such consolidation, merger, conveyance or transfer comply with this Agreement.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust Seller shall not dissolve or liquidate, in whole or in part, except (A) as permitted in paragraph (ii) above or (B) with the prior written consent of the Trustee and the Majority Certificateholders (if the Certificates are not then rated) and prior written confirmation from each Rating Agency, if any, (a copy of which shall be provided to the Trustee and each Certificateholder by the Seller) that such dissolution or liquidation will have no adverse effect on the rating assigned to the Rated Certificates.
(eiv) The Trust funds and other assets of the Seller shall not bebe commingled with those of any other corporation, become entity or Person, including, but not limited to, the parent or Affiliates of the Seller.
(v) The Seller shall not hold itself out as being liable for the debts of any other Personparty, or hold out its credit as being available to satisfy the obligation of any other Personincluding, but not limited to, the Trust and debts of the Certificateholders will not act as agents for each other and parent or Affiliates of the Trust will not act as the agent of any Person in control of a CertificateholderSeller.
(fvi) The Trust Seller shall not form, or cause to be formed, or otherwise have, any subsidiaries.
(vii) The Seller shall act solely in its Trust corporate name and through its the duly authorized officers or agents in the conduct of its business, prepare all Trust correspondence in the Trust name, hold itself out as a separate entity from any other Person, and shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, correct any known misunderstanding regarding its separate identity.
(gviii) At all times, except in the case of a temporary vacancy, which shall promptly be filled, the Seller shall have on its board of directors at least one director who qualifies as an "Independent Director" as such term is defined in the Seller's Certificate of Incorporation as originally filed with the Delaware Secretary of State's office.
(ix) The Trust Seller shall maintain trust records, accounts, records and books of account of the Seller and bank accounts separate from those of any other person shall not commingle its trust records, accounts, such records and books of account or bank accounts with the organizational or other records, accounts records and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the TrustPerson. The books of the Trust Seller may be kept (subject to any provision contained in any applicable the statutes) inside or outside the State of Delaware New Jersey at such place or places as may be designated from time to time by the Trustboard of directors of the Seller.
(hx) The Trust board of directors of the Seller shall take such actions as may be necessary hold appropriate meetings to authorize all of its actions as may corporate actions. Regular meetings of the board of directors of the Seller shall be required by lawheld not less frequently than three times per annum.
(ixi) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof Meetings of the shareholders of the Seller shall be held not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Documentsless frequently than one time per annum.
(jxii) The Trust shall (i) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,, (ii) maintain stationery, invoices and checks separate from any other person, (iii) pay all of its taxes, expenses and liabilities only from its own funds, (iv) strictly comply with all organizational and statutory formalities to maintain its separate existence, (v) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi) maintain an arm’s length relationship with the Certificateholders and their respective Affiliates and (vii) maintain separate financial statements from any other Person. The Trust Seller shall not amend, alter, change or repeal any provision contained in this Section 8.07(a) without (A) pledge any property or assets the affirmative vote in favor thereof of eighty percent (80%) of the Trust (except pursuant to the Basic Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course then outstanding shares of the activities of the Trust), Seller entitled to vote thereon; (B) except for investments in Investment Securities made pursuant to the Indenture, not make an investment in or for prior written consent of the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, Trustee and the Majority Certificateholders; and (C) make any capital expendituresthe prior written confirmation from each Rating Agency, (D) to if any, that the fullest extent permitted by law, take any Bankruptcy Action, or (E) guarantee (directly or indirectly), endorse, acquire, assume or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, rating on the obligations or liabilities of any other PersonRated Certificates will not be impaired.
(kxiii) The Trust Seller shall allocate fairly and reasonably with any other Person expenses that are shared with such Person includingnot, without limitationthe affirmative unanimous vote of the whole board of directors of the Seller (including at least one director referred to in clause (viii) above), institute any overheadproceedings to adjudicate the Seller a bankrupt or insolvent, rentconsent to the institution of bankruptcy or insolvency proceedings against the Seller, file a petition seeking or consenting to reorganization or relief under any applicable federal or State law relating to bankruptcy, consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other compensation paid for shared or leased office space.
(lsimilar official) The Trust (i) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State Seller or a substantial part of Delaware and will obtain and preserve its qualification property or admit its inability to do business in each jurisdiction in which such qualification is pay its debts generally as they become due or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic Documents; (ii) has observed and shall observe all procedures required by this Trust Agreement and the laws authorize any of the State of Delaware; and (iii) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust Act.
(m) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall foregoing to be performed done or taken on behalf of the Trust by independent contractors. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any Certificateholder or Affiliates of any Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the TrustSeller.
(nxiv) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets Seller is not and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate of a Certificateholder.
(o) Except for the Delaware Trustee’s standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will be maintained as identifiable assets held in its name.
(p) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and their respective Affiliates pursuant to enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clause).
(q) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into involved in the Trust).
(r) None day-to-day or other management of the Trust, any Certificateholder or any Person on behalf of the Trust shall, and none of them shall have the authority to, enter into any agreements, written or otherwise, pursuant to which any Certificateholder its parent or any of its Affiliates agrees to extend credit, make loans or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(vxv) Except pursuant Other than the purchase and sale or pledge of assets as provided in this Agreement and related agreements with respect to this transaction and other transactions relating to the Basic Documents purchase of auto loan receivables and trade payables incurred the issuance of rated debt or rated certificates of participation, the Seller shall engage in no other transactions with any of its Affiliates.
(xvi) Seller shall maintain a separate business office and telephone number from any of its Affiliates.
(xvii) Seller's financial statements shall reflect its separate legal existence from any of its Affiliates.
(xviii) The Seller will not amend its Certificate of Incorporation in any respect material to the ordinary course Certificateholders without the consent of the activities Majority Certificateholders (or, if the Certificates have been rated, by each Rating Agency.)
(xix) The Seller shall use separate invoices, stationery and checks.
(xx) The Seller shall not suffer or permit the credit or assets of Aegis Finance to be held out as available for the obligations of the Trust, the Trust Seller.
(xxi) The Seller shall enter into transactions with Aegis Finance or its affiliates only on commercially reasonable terms.
(xxii) The Seller shall not incur or issue any debt, secured or unsecured, direct or contingent "Obligation" (including, without limitation, guaranteeing any obligation)as such term is defined in its Certificate of Incorporation) in contravention of the limitations set forth therein.
(wxxiii) To The Seller shall not issue any "Securities" or incur or issue any "Obligations" (as such terms are defined in its Certificate of Incorporation) under any other pooling and servicing agreement, purchase agreement or otherwise, unless such agreement contains an express provision substantially similar to Section 13.10 hereof limiting recourse to the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere Seller to the assets involved in this Trust Agreement, not take or refrain from taking any act the transaction to which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereofsuch agreement relates.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aegis Consumer Funding Group Inc)
Covenants Regarding Operations. (a) Notwithstanding anything any other provision to the contrary herein, or any power conferred on the Delaware Trustee pursuant to of this Trust Agreement or any other agreement, document or instrument executed by the Delaware Statutory Trust Actand notwithstanding any prior termination of this Trust Agreement, so the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture has not terminated is in accordance with its termseffect, and except as otherwise provided in the Indenture and the Transaction Documents:
(ai) The Trust shall not engage in any business or activity other than in connection with or relating to the purchase or acquisition and ownership of the Trust Estate, the grant of such Trust Estate to the Trustee and the activities permitted hereinspecified in Section 2.05.
(bii) The Trust shall not consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, or pledge its assets to any other entity, entity except as may be permitted pursuant to provided in the Basic Transaction Documents.
(ciii) The Trust shall not form, or cause to be formed, any subsidiaries.
(d) To the fullest extent permitted by law, the Trust shall not dissolve or liquidate, in whole or in part.
(eiv) The Trust shall not be, become or hold itself out as being liable for the debts of any other Person, or hold out its credit as being available to satisfy the obligation of any other Person, and the Trust and the Certificateholders Sponsor (or any other Certificateholder) will not act as agents for each other and the Trust will not act as the agent of any Person in control of a Certificateholderother.
(fv) The Trust shall not form, or cause to be formed, any subsidiaries.
(vi) The Trust shall act solely in its Trust name and through its duly authorized officers Authorized Officers or agents in the conduct of its business, shall prepare all Trust correspondence in the Trust name, shall hold itself out as a separate entity from any other Person, shall conduct its business so as not to mislead others as to the identity of the entity with which they are concerned, concerned and shall correct any known misunderstanding regarding its separate identity.
(gvii) The Trust shall maintain statutory trust records, accounts, accounts and books of account and bank accounts separate from those of any other person shall not commingle its statutory trust records, accounts, accounts and books of account or bank accounts with the organizational or other records, accounts and books of account of any other corporation or entity and such records, accounts and books of account shall reflect the separate existence of the Trust. The books of the Trust may be kept (subject to any provision contained in any applicable statutes) inside or outside the State of Delaware at such place or places as may be designated from time to time by the Trust.
(hviii) The Trust shall take such actions as may be necessary to authorize all of its actions as may be required by law.
(iix) This Trust Agreement Section and Sections 2.03, 4.03 and 11.08 hereof shall not be amended, altered, changed or repealed, except as may be permitted pursuant to the Basic Transaction Documents.
(jx) The Trust shall (i1) conduct its business in an office separate from that of the Certificateholders and their respective Affiliates,Certificateholders, (ii2) maintain stationery, invoices and checks separate from that of any other personPerson, (iii3) pay all of its taxes, own expenses and liabilities only from its own funds, (iv4) strictly comply with observe all organizational and statutory formalities to maintain its separate existenceformalities, (v5) pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations, (vi6) maintain an arm’s 's length relationship with the Certificateholders and their respective Affiliates its affiliates and (vii7) maintain separate financial statements from any other Person. The Trust shall not (A) pledge any property or assets of the Trust (except pursuant to the Basic Transaction Documents), lend or advance any moneys to any other person (other than trade receivables in connection with the ordinary course of the activities of the Trust)to, (B) except for investments in Investment Securities made pursuant to the Indenture, not or make an investment in or for the benefit of, or own or purchase any stock, obligations or securities of or any interest in, or make any capital contribution to, any other Person, (CB) make any capital expenditures, (DC) subject to the fullest extent permitted by lawSection 5.06, take any Bankruptcy Action, or (ED) guarantee (directly or indirectly), endorse, acquire, assume endorse or otherwise become contingently liable (directly or indirectly) for, or pay from its funds, the obligations or liabilities indebtedness of, or (except pursuant to the Transaction Documents) own or purchase any stock, obligations or securities of or any other interest in, or make any capital contribution to, any other Person.
(kxi) The Trust shall allocate fairly and reasonably with any other Person expenses that are shared with such Person including, without limitation, any overhead, rent, or other compensation paid for shared or leased office space.
(lxii) The Trust (iA) has maintained and shall maintain its valid existence, rights and franchises in good standing as a statutory trust under the laws of the State of Delaware and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Trust Agreement and the Basic DocumentsAgreement; (iiB) has observed and shall observe all procedures required by this Trust Agreement and the laws of the State of Delaware; and (iiiC) has otherwise complied and shall otherwise comply with the provisions of this Trust Agreement and the Delaware Statutory Trust ActStatute.
(mxiii) Financial and operational services, including, without limitation, maintenance of the books and records of the Trust and preparation of the financial statements shall be performed on behalf of the Trust by independent contractors, including, without limitation, employees of the Administrator or its affiliates. The entity performing such services or incurring expenses in connection with such services for the Trust shall receive compensation for such services rendered or expenses incurred in an amount equal to the fair value of such services and expenses. To the extent that the Trust leases premises from any a Certificateholder or Affiliates affiliates of any a Certificateholder, the Trust shall pay appropriate compensation or rental. The Trust shall be directly responsible for the costs of its own outside legal, auditing and other similar services. The amounts deposited with into the Trust and the cash flow expected to be received by the Trust under the Indenture is expected to be sufficient to meet the fees and costs of the Delaware Trustee and the Administrator for the Trust and the reasonably anticipated expenses and liabilities of the Trust.
(nxiv) The annual financial statements of the Trust shall disclose the effects of these transactions in accordance with generally accepted accounting principles. The consolidated financial statements which consolidate the assets and earnings of any Certificateholder with those of the Trust shall not state that the assets of the Trust shall be available to creditors of a Certificateholder. The financial statements (if any) of the Trust shall not state that the assets of the Trust are or will be available to pay creditors of any Certificateholder or any other Affiliate affiliate (other than the obligations of a Certificateholderthe Certificateholder to indemnify the Delaware Trustee under this Trust Agreement).
(oxv) The Trust will not guarantee any indebtedness of or make loans to a Certificateholder or its affiliates.
(xvi) Except for the Delaware Trustee’s 's standard practice regarding maintenance of funds and assets, the funds and other assets of the Trust will not be commingled with those of any other Person and will shall be maintained as identifiable funds and assets held in its namethe name of the Trust.
(pxvii) The Trust shall not enter into any contract or agreement with any of its Certificateholders or their respective Affiliates affiliates except on terms that are intrinsically fair, commercially reasonable, and substantially similar to those that would be available on an arms-length basis with third parties, and transact all business with its Certificateholders and or their respective Affiliates affiliates pursuant to written, enforceable agreements with pricing and material terms established at the inception that will not be amendable except with written consent of each of the parties to the agreement (provided that as of the date of this Agreement, the Basic Documents shall be deemed to be agreements which meet, and which create relationships that meet, the requirements of this clauseagreement).
(qxviii) The Trust shall maintain adequate capital for the normal obligations reasonably foreseeable for the size and character of the activities of the Trust and in light of its proposed operations and liabilities (provided that this clause shall not be deemed a commitment by any Certificateholder to deposit additional amounts into the Trust).
(rxix) None of the Trust, any Certificateholder or any Person on behalf of the The Trust shall, and none of them shall have the authority to, not enter into any agreements, written or otherwise, pursuant to which any the Certificateholder or any of its Affiliates agrees to extend credit, make loans credit or make payment or contributions to or for or assume, guaranty or otherwise be obligated for the payment of obligations or performance of the Trust or hold itself out as being liable for the debts of the Trust, or hold out its credit as being available to satisfy the obligations of the Trust (other than the obligations of the Certificateholder to indemnify the Delaware Trustee under this Trust Agreement); provided, however, that any Certificateholder may make any deposit to the Trust that such Certificateholder determines to be in the Certificateholder’s 's best interest.
(s) The Trust shall properly account for any transactions entered into between the Trust and the Certificateholders and their respective Affiliates in its books and financial records.
(t) The Trust shall not knowingly perform any act that would subject (A) any Certificateholder to liabilities of the Trust in any jurisdiction or (B) the Trust to taxation as a corporation under relevant provisions of the Code.
(u) The Trust shall not be maintained or used to abuse creditors or to perpetuate fraud, injury or injustice to creditors of a Certificateholder or its Affiliates.
(v) Except pursuant to the Basic Documents and trade payables incurred in the ordinary course of the activities of the Trust, the Trust shall not incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation).
(w) To the fullest extent permitted by applicable law and except as otherwise expressly provided elsewhere in this Trust Agreement, not take or refrain from taking any act which would make it impossible to carry on the activities of the Trust set forth in Section 2.03 hereof.
Appears in 1 contract
Samples: Trust Agreement (Gmac Elf LLC)
