Common use of Independent Directors Clause in Contracts

Independent Directors. The Borrower will at all times have two Independent Directors and ensure that all actions relating to (x) the selection, maintenance or replacement of the Independent Directors, (y) the dissolution or liquidation of the Borrower or (z) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent of the Borrower’s directors, including the Independent Directors; and (i) at least two members or the board of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program Agent) and (ii) none of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any Independent Director, in each case without the prior written consent of the Program Agent, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent Director.

Appears in 11 contracts

Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC)

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Independent Directors. The Borrower will at all times have two Independent Directors and ensure that all actions relating to (x) the selection, maintenance or replacement of the Independent Directors, (y) the dissolution or liquidation of the Borrower or (z) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent of the Borrower’s directors, including the Independent Directors; and (i) at least two members or the board of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent Lender (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program AgentLender) and (ii) none of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any Independent Director, in each case without the prior written consent of the Program AgentLender, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent Lender in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent Director.

Appears in 4 contracts

Samples: Loan and Servicing Agreement (DT Acceptance Corp), Loan and Servicing Agreement (DT Credit Company, LLC), Loan and Servicing Agreement (DT Credit Company, LLC)

Independent Directors. The Borrower will at all times have two Independent Directors From and ensure that all actions relating to (x) after the selection, maintenance or replacement effective time of the Independent DirectorsMerger ("Effective Time") and until this Agreement is terminated in accordance with its terms, (y) the dissolution or liquidation number of directors comprising the Borrower or (z) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent of the Borrower’s Board shall be not less than eleven. Of those eleven directors, including four directors shall (subject to the adjustment pursuant to Section 1.02 hereof) be independent directors, each of whom shall be deemed independent (each of these four directors being an "Independent Directors; and Director") if: (i) other than acting as a director of DNAP at least two members any time or of the board Company or a subsidiary of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent (such acceptability of any Independent Director appointed Company after the date hereof must be evidenced in writing signed by of this Agreement, such director is not an employee or an Affiliate (as defined below) of the Program Agent) Company, ELM or any Affiliate of ELM, and (ii) none such director is an "independent director" for purposes of Part III Section 6(c) of Schedule D to the By-Laws of the Borrower or the OriginatorNational Association of Securities Dealers, Inc. "Affiliate" means, with respect to any person, any other person controlling, controlled by or under direct or indirect common control with such person. For the purposes of Borrower’s members this definition, "control," when used with respect to any specified person, shall mean the power to direct the management and policies of such person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise. Three of the initial Independent Directors shall be current DNAP Independent Directors (the "DNAP Independent Directors") designated by the DNAP board of directors or any of their respective Affiliates prior to the Merger and one shall remove any Independent Director or replace any be designated by ELM (the "ELM Independent Director"), in each case without with the prior written consent of the Program AgentDNAP, which consent shall not be unreasonably withheldwithheld or delayed, prior to the Merger. The Borrower shall compensate each Notwithstanding the foregoing and any other provision of this Agreement, upon the occurrence of the first DNAP Independent Director in accordance with its agreement with to resign or die after the date of this Agreement, the number of Company directors shall be reduced to not less than nine. Of those nine directors, three directors (subject to adjustment pursuant to Section 1.02 hereof) shall be Independent Directors. Under such circumstances, two of such Independent Directors shall be DNAP Independent Directors and one such Independent Director (or the company employing such shall be an ELM Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective AffiliatesDirector. The limited liability company agreement of the Borrower shall provide that the reduction from eleven to nine directors of the Borrower as hereinabove provided shall not approve, or take have the effect of shortening the term of any other action to cause director in office at the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking time of such action reduction, but such reduction will be effected in writing prior to connection with the taking next succeeding annual meeting of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent DirectorCompany stockholders.

Appears in 1 contract

Samples: Governance Agreement (Dna Plant Technology Corp)

Independent Directors. The Borrower will Company’s Board of Directors shall at all times have two at least four Independent Directors; provided, however, that notwithstanding the foregoing, if an Independent Director resigns, dies or is terminated for any reason and the remaining number of Independent Directors is less than four, a replacement for that Independent Director shall be elected as promptly as practicable, but in no event later than the date that is six months from the date of the resignation, death or termination of the Independent Director being replaced. After the Issue Date, the election of any new Independent Directors must be approved by a unanimous vote of the Independent Directors then in office, provided that only a majority vote of the Independent Directors is required if at the time there are four or more Independent Directors in office. The Independent Directors shall approve such new Independent Director unless the Independent Directors determine that such person does not satisfy the requirements to serve as an Independent Director under this Indenture or such person is not able or willing to perform the obligations of the Independent Directors under this Indenture. If at any time the number of Independent Directors then in office is less than two, then until such time as the number of Independent Directors exceeds two the Company shall not, and ensure shall not permit any of its Subsidiaries to, engage in any transaction that all actions relating to (x) the selection, maintenance or replacement this Indenture requires be approved by a vote of the Independent Directors, (y) the dissolution or liquidation . Any transaction that this Indenture requires be approved by a vote of the Borrower or (z) Independent Directors shall be evidenced by a Secretary’s Certificate setting forth a resolution adopted by at least the initiation ofrequisite number of Independent Directors, participation ina copy of which shall be delivered to the Trustee, acquiescence in or consent which resolution shall state that the transaction being approved is not unfair to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent holders of the Borrower’s directors, including Securities. The failure to comply with this clause (d) shall have the effect of the Company failing to comply with the requirement in this Indenture to obtain a vote of the Independent Directors; and (i) at least two members or the board of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program Agent) and (ii) none of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any Independent Director, in each case without the prior written consent of the Program Agent, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent Director.

Appears in 1 contract

Samples: Indenture (Independent Gasoline & Oil Co of Rochester)

Independent Directors. The organizational documents of Borrower will (where Borrower is a corporation or a single member limited liability company formed under the Act) or SPE Component Entity, as applicable, shall include the following provisions: (a) at all times have there shall be, and Borrower or SPE Component Entity, as applicable, shall cause there to be, at least two (2) Independent Directors and ensure that all actions relating to Directors; (xb) the selectionboard of directors or managers of Borrower or SPE Component Entity, maintenance as applicable, shall not take any Material Action which, under the terms of any certificate of incorporation, by-laws, voting trust agreement with respect to any common stock, articles of organization or replacement operating agreement requires unanimous vote of the board of directors or managers of Borrower or SPE Component Entity, as applicable, unless at the time of such action there shall be at least two members of the board of directors or managers who are Independent Directors, ; (yc) the dissolution or liquidation of the Borrower or (z) SPE Component Entity, as applicable, shall not, without the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous written consent of the Borrower’s directorsits board of directors or managers, including the Independent Directors, on behalf of itself or Borrower, as the case may be, take any Material Action or any action that might cause such entity to become insolvent, and when voting with respect to such matters, the Independent Directors shall, to the fullest extent permitted by law, including Section 18-1101(c) of the Act, and notwithstanding any duty otherwise existing at law or in equity, consider only the interests of Borrower and the SPE Component Entity (including their respective creditors), and except for its duties to Borrower and the SPE Component Entity with respect to voting on matters as set forth immediately above (which duties shall extend to the constituent equity owners of Borrower and the SPE Component Entity solely to the extent of their respective economic interests in Borrower or the SPE Component Entity but shall exclude (i) all other interests of such constituent equity owners, (ii) the interests of other affiliates of Borrower or the SPE Component Entity, and (iii) the interests of any group of affiliates of which Borrower and the SPE Component Entity are a part), the Independent Directors shall not have any fiduciary duties to such constituent equity owners, any officer or any other Person; provided, however, the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing; and (d) no Independent Director of Borrower or SPE Component Entity may be removed or replaced other than as a result of an Independent Director Event, and any such removal or replacement shall not occur unless Borrower or SPE Component Entity provides Lender with not less than five (5) Business Days’ prior written notice of (i) at least two members or the board any proposed removal of directors of Borrower shall at all times be an Independent Directors reasonably acceptable Director, together with a statement as to the Program Agent (reasons for such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program Agent) removal, and (ii) none the identity of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any proposed replacement Independent Director, together with a certification that such replacement satisfies the requirements set forth in each case without the prior written consent of the Program Agentorganizational documents for an Independent Director; provided, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approvehowever, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent in writing of the no resignation or removal of any an Independent Director shall be effective until a successor Independent Director is appointed and has accepted his or its receipt of any notice of intended resignation by any Independent Directorher appointment.

Appears in 1 contract

Samples: Loan Agreement (Stirling Hotels & Resorts, Inc.)

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Independent Directors. The Borrower will at all times have two Independent Directors and ensure that all actions relating to (x) the selection, maintenance or replacement of the Independent Directors, (y) the dissolution or liquidation of the Borrower or (z) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent of the Borrower’s directors, including the Independent Directors; and (i) at least two members or the board of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent Lender (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program AgentLender) and (ii) none of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any Independent Director, in each case without the prior written consent of the Program AgentLender, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent - 68 - Lender in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent Director.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)

Independent Directors. The Borrower will at all times have two Independent Directors and ensure that all actions relating to (x) the selection, maintenance or replacement of the Independent Directors, (y) the dissolution or liquidation of the Borrower or (z) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding involving the Borrower, are duly authorized by unanimous consent of the Borrower’s directors, including the Independent Directors; and (i) at least two members or the board of directors of Borrower shall at all times be Independent Directors reasonably acceptable to the Program Agent (such acceptability of any Independent Director appointed after the date hereof must be evidenced in writing signed by the Program Agent) and (ii) none of the Borrower or the Originator, any of Borrower’s members or directors or any of their respective Affiliates shall remove any Independent Director or replace any Independent Director, in each case without the prior written consent of the Program Agent, which consent shall not be unreasonably withheld. The Borrower shall compensate each Independent Director in accordance with its agreement with such Independent Director (or the company employing such Independent Director as a part of its business of supplying director services to special purpose entities). No Independent Director shall at any time serve as a trustee in bankruptcy for the Borrower or the Originator or any of their respective Affiliates. The limited liability company agreement of the Borrower shall provide that the directors of the Borrower shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Borrower unless each Independent Director shall approve the taking of such action in writing prior to the ACTIVE 200146376v.2 taking of such action. Without limiting the foregoing, the Borrower will promptly notify the Program Agent in writing of the resignation or removal of any Independent Director or its receipt of any notice of intended resignation by any Independent Director.

Appears in 1 contract

Samples: Loan and Servicing Agreement (Drivetime Automotive Group Inc)

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