Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing: (i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents; (ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof; (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates; (iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis; (v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates; (vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts; (vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations); (viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement; (ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV; (x) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it; (xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates; (xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates; (xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation; (xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence of the SPV; (xv) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables; (xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and (xvii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 8 contracts
Samples: Transfer and Administration Agreement (Arrow Electronics, Inc.), Transfer and Administration Agreement (Arrow Electronics Inc), Transfer and Administration Agreement (Arrow Electronics Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each the Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent Investors and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each the Originator and its respective Affiliates (provided it may be within the same offices as the Originator and its Affiliates);
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholdersmembers’ and directorsmanagers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any the Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholder, directormember, manager, officer, employee or associate, or any relative of the foregoing, of any the Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any the Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents Investors and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation limited liability company agreement of the SPV require requires the affirmative vote of the its independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and requires the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders member and board of directorsmanagers.
Appears in 4 contracts
Samples: Transfer and Administration Agreement (United Stationers Inc), Transfer and Administration Agreement (United Stationers Inc), Transfer and Administration Agreement (United Stationers Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the Rabobank Assignment, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who (A) for the five-year period prior to his or her appointment as independent manager has never not been, and during the continuation of his or her service as independent manager shall at no time be a stockholdernot be: (I) an employee, director, officerstockholder, employee member, manager, partner or associateofficer of the SPV, Xxxxx, Inc. or any relative of the foregoing, of any Originator or any Affiliate thereof their respective Affiliates (other than his or her service as an independent manager of the SPV); (II) except for CT Corporation, Corporation Service Company, Global Securitization Services, LLC, Lord Securities Corporation, AMACAR Group, L.L.C. or any of their respective Affiliates or any other similar service provider unless objected to in writing by Agent (collectively, the “Approved Service Providers”), a customer or supplier of the SPV, Xxxxx, Inc. or any of their respective Affiliates (other than his or her service as an independent manager of the SPV); or (iii) any member of the immediate family of a person described in (I) or (II), (B) has, (I) prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent manager thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (II) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) if approved as an independent manager of the SPV and any other bankruptcy-remote special purpose entity formed for after the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, Closing Date and is not otherwise reasonably acceptable affiliated with an Approved Service Provider, has been consented to in writing by the Investors, the Funding Agents and the Administrative Agent; andAgent (such consent not to be unreasonably withheld or delayed);
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies with (and causes to maintain correct be true and complete books and records of account and minutes correct) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders Vorys, Xxxxx, Xxxxxxx and board Xxxxx LLP, delivered pursuant to Section 5.1(m) of directorsthe Existing Agreement and this Agreement.
Appears in 3 contracts
Samples: Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif, Inc), Transfer and Administration Agreement (Greif Inc)
Nonconsolidation. The SPV is operated Seller will operate in such a manner that the separate corporate existence of the SPV, on the one hand, Seller and each Originator or any Seller Entity and Affiliate thereof, on the other, thereof would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Seller Entity and Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has Seller will not engaged, and does not presently engage, engage in any activity other than those activities expressly permitted hereunder and under the other Seller’s organizational documents and the Transaction Documents, nor has will the SPV entered Seller enter into any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(Aii) the SPV maintains its own deposit account or accounts, Seller will maintain a business office separate from those that of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV Seller Entities and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall thereof (which office may be only on an arm’s-length basis;
(v) located within the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate physical premises of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is Parent pursuant to an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligationsarms’ length agreement);
(viiiiii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) Seller will cause the financial statements and books and records of the SPV and Arrow Seller to reflect the separate corporate existence of the SPVSeller;
(xviv) the SPV does Seller will not, except as otherwise expressly permitted hereunder, under the other Transaction Documents and under the Seller’s organizational documents, authorize any Seller Entity or Affiliate thereof to (A) pay the Seller’s expenses, (B) guarantee the Seller’s obligations, or (C) advance funds to the Seller for the payment of expenses or otherwise except that Parent may make contributions to the capital of Seller; and
(v) the Seller will not act as agent for any Originator Seller Entity or any Affiliate thereofAffiliate, but instead presents will present itself to the public as a corporation separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 3 contracts
Samples: Receivables Sale Agreement (Perkinelmer Inc), Receivables Sale Agreement (Perkinelmer Inc), Receivables Sale Agreement (Albany International Corp /De/)
Nonconsolidation. The SPV Transferor is operated in such a manner that the separate corporate existence of the SPVTransferor, on the one hand, and each Originator Tech Data or any Affiliate thereof, on the otherother hand, would shall not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV Transferor is a limited purpose corporation whose activities are restricted in its certificate Certificate of incorporation Incorporation to activities related to purchasing or otherwise acquiring receivables and related property (including the ReceivablesReceivables and the Related Security) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV Transferor has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV Transferor entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Class Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV Transferor maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV Transferor are not and have not been diverted to any other Person or for other than the corporate use of the SPV Transferor and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV Transferor are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV Transferor and such entities for whose benefit the goods and services are provided, and each of the SPV Transferor and each such entity bears its fair share of such costs; and all material transactions between the SPV Transferor and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV Transferor maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator Tech Data and its respective Affiliates;
(vi) the SPV Transferor conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), ,
(vii) (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(viiviii) all decisions with respect to its business and daily operations are independently made by the SPV Transferor (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPVTransferor) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations)Transferor;
(viiiix) the SPV Transferor acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV Transferor shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ixx) no Affiliate of the SPV Transferor advances funds to the SPVTransferor, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV Transferor otherwise supplies funds to, or guaranties debts of, the SPVTransferor; provided, however, that an Affiliate of the SPV Transferor may provide funds to the SPV Transferor in connection with the capitalization of the SPVTransferor;
(xxi) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV Transferor pays all expenses, indebtedness and other obligations incurred by it;
(xixii) the SPV Transferor does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xiixiii) any financial reports required of the SPV Transferor comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiiixiv) at all times the SPV Transferor is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xivxv) the financial statements and books and records of the SPV Transferor and Arrow Tech Data reflect the separate corporate existence of the SPVTransferor;
(xvxvi) the SPV Transferor does not act as agent for any Originator Tech Data or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing the Receivables;
(xvixvii) the SPV Transferor maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator Tech Data or any Affiliate thereof (other than the SPV Transferor and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator Tech Data or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents each Class Agent and the Administrative Agent; and
(xviixviii) the bylaws or the certificate or articles of incorporation of the SPV require Transferor requires the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPVTransferor, and the SPV Transferor to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Tech Data Corp), Transfer and Administration Agreement (Tech Data Corp)
Nonconsolidation. The SPV Transferor is operated in such a manner that the separate corporate existence of the SPVTransferor, on the one hand, and each Originator Tech Data or any Affiliate thereof, on the otherother hand, would shall not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV Transferor is a limited purpose corporation whose activities are restricted in its certificate Certificate of incorporation Incorporation to activities related to purchasing or otherwise acquiring receivables and related property (including the ReceivablesReceivables and the Related Security) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV Transferor has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV Transferor entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Class Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV Transferor maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV Transferor are not and have not been diverted to any other Person or for other than the corporate use of the SPV Transferor and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV Transferor are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV Transferor and such entities for whose benefit the goods and services are provided, and each of the SPV Transferor and each such entity bears its fair share of such costs; and all material transactions between the SPV Transferor and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV Transferor maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator Tech Data and its respective Affiliates;
(vi) the SPV Transferor conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (
(vii) B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(viiviii) all decisions with respect to its business and daily operations are independently made by the SPV Transferor (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPVTransferor) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations)Transferor;
(viiiix) the SPV Transferor acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV Transferor shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ixx) no Affiliate of the SPV Transferor advances funds to the SPVTransferor, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV Transferor otherwise supplies funds to, or guaranties debts of, the SPVTransferor; provided, however, that an Affiliate of the SPV Transferor may provide funds to the SPV Transferor in connection with the capitalization of the SPVTransferor;
(xxi) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV Transferor pays all expenses, indebtedness and other obligations incurred by it;
(xixii) the SPV Transferor does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xiixiii) any financial reports required of the SPV Transferor comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiiixiv) at all times the SPV Transferor is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xivxv) the financial statements and books and records of the SPV Transferor and Arrow Tech Data reflect the separate corporate existence of the SPVTransferor;
(xvxvi) the SPV Transferor does not act as agent for any Originator Tech Data or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing the Receivables;
(xvixvii) the SPV Transferor maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator Tech Data or any Affiliate thereof (other than the SPV Transferor and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator Tech Data or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents each Class Agent and the Administrative Agent; and
(xviixviii) the bylaws or the certificate or articles of incorporation of the SPV require Transferor requires the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPVTransferor, and the SPV Transferor to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Tech Data Corp), Transfer and Administration Agreement (Tech Data Corp)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 2 contracts
Samples: Transfer and Administration Agreement (Arrow Electronics Inc), Transfer and Administration Agreement (Arrow Electronics Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each the Originator or any Affiliate thereofof the Originator, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Originator or any Affiliate thereof of the Originator and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Pool Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative AgentMajority Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains shall at all times maintain a plaque or other sign separate from the plaque or sign of the Originator designating for its office space and allocate, fairly and reasonably, all the overheads for shared spaces with the Originator and shall maintain a telephone listing and stationery through which all business correspondence and communication are conducted, in each case separate from those of each the Originator and its respective their Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation limited liability agreement and other formation documents and observes all necessary, appropriate and customary corporate formalitiesformalities as a limited liability company, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (DB) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate limited liability company’s name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this AgreementAgreement or other Transaction Documents;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as otherwise expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its AffiliatesAffiliates or any other Person;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationlimited liability company agreement and other formation documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any the Originator or any Affiliate thereofof either the Originator, but instead presents itself to the public as a corporation separate existence from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, Independent Manager who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any the Originator or any Affiliate thereof of the Originator (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any the Originator or any Affiliate thereofof the Originator), all as provided in its certificate or articles of incorporation, limited liability company agreement and other formation documents and is otherwise reasonably acceptable to the Investors, the Funding Agents Majority Lenders and the Administrative Facility Agent; and
(xvii) the bylaws or the certificate or articles of incorporation limited liability company agreement and other formation documents of the SPV require (A) the affirmative vote of the independent director Independent Manager before the SPV may (1) file a voluntary petition under Section 301 of the Bankruptcy Code may Code, (2) dissolve or liquidate, or institute proceedings to be filed by adjudicated bankrupt or insolvent, (3) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (4) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SPV, (6) make any assignment for the benefit of the SPV’s creditors, (7) admit in writing its inability to pay its debts generally as they become due, or (8) take any action in furtherance of any of the foregoing, and (B) the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate legal existence of the SPV, on the one hand, and the Servicer, Colliers and each Originator or any Affiliate thereof, on the otherother hand, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, Colliers, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereofincidental thereto;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for any purpose other than the corporate use purpose of the SPV and activities incidental thereto and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and except as permitted by the Transaction Documents, all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery a principal executive and administrative office through which all its business correspondence and communication are is conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsmanagers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (other than Colliers, in its capacity as the “Member” of the SPV, in accordance with the SPV’s organizational documents) (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers officers, managers, members and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) other than the CF SPV, no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents;
(x) other than the SPV, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xxi) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xixii) except as permitted by the Transaction Documents, the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xiixiii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiiixiv) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xivxv) the financial statements and books and records of the SPV SPV, Colliers and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xvxvi) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing receivables (including the Receivables);
(xvixvii) the SPV maintains a three3-person board of directorsmanagers, including at least one independent directormanager, who has never beennot been at any time during the preceding five (5) years, and shall at no time time, as long as such person is a manager of the SPV, be a stockholderan equity owner, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xviixviii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative unanimous vote of the independent director managers before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Colliers International Group Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate legal existence of the SPV, on the one hand, and the Servicer, Colliers and each Originator or any Affiliate thereof, on the otherother hand, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, Colliers, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereofincidental thereto;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for any purpose other than the corporate use purpose of the SPV and activities incidental thereto and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and except as permitted by the Transaction Documents, all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery a principal executive and administrative office through which all its business correspondence and communication are is conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsmanagers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (other than the General Partner or Colliers, in its capacity as the “limited partner” of the SPV, in accordance with the SPV’s organizational documents) (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers officers, managers, members and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) other than the U.S. SPV, no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents;
(x) other than the SPV, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xxi) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xixii) except as permitted by the Transaction Documents, the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xiixiii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiiixiv) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xivxv) the financial statements and books and records of the SPV SPV, Colliers and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xvxvi) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing receivables (including the Receivables);
(xvixvii) the SPV General Partner maintains a three-person board of directorsdirectors of at least 3-persons, including at least one independent director, who has never beennot been at any time during the preceding five (5) years, and shall at no time time, as long as such person is a director of the General Partner, be a stockholderan equity owner, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV General Partner and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xviixviii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV General Partner require the affirmative unanimous vote of the independent director directors before a voluntary petition under Section 301 of the Bankruptcy Code applicable Debtor Relief Laws may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Canadian Transfer and Administration Agreement (Colliers International Group Inc.)
Nonconsolidation. The Each SPV is operated in such a manner that the separate corporate existence of the such SPV, on the one hand, and each Originator or any Affiliate thereofOriginator, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV it is a limited purpose corporation limited liability company or limited partnership whose activities are restricted in its certificate of incorporation limited liability company agreement or limited partnership agreement, as applicable, to activities related to purchasing or otherwise acquiring receivables (including the Pool Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV it has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV it entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Facility Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV it maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the its funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the such SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the such SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV it contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV it and such entities for whose benefit the goods and services are provided, and each of the SPV it and each such entity bears its fair share of such costs; and all material transactions between the SPV it and any of its Affiliates shall be only on an arm’s-length basis;
(v) it shall at all times maintain a plaque or other sign separate from the SPV maintains plaque or sign of the applicable Originator designating for its office space and allocate, fairly and reasonably, all the overheads for shared spaces with such Originator and shall maintain a telephone listing and stationery through which all business correspondence and communication are conducted, in each case separate from those of each such Originator and its respective Affiliates;
(vi) the SPV it conducts its affairs strictly in accordance with Applicable Law, its certificate of incorporation limited liability agreement or limited partnership agreement, as applicable, and other formation documents and observes all necessary, appropriate and customary corporate formalitiesformalities as a limited liability company or limited partnership, as applicable, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate limited liability company action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (DC) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV it (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the such SPV) and are not dictated by any Affiliate of the such SPV (it being understood that the Master applicable Servicer, which is an Affiliate of the such SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the such SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV it acts solely in its own corporate name limited liability company’s or limited partnership’s name, as applicable, and through its own authorized officers and agents, and no Affiliate of the such SPV shall be appointed to act as its agent, except as expressly contemplated by this AgreementAgreement or other Transaction Documents;
(ix) no Affiliate of the SPV it advances funds to the SPVit, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the such SPV otherwise supplies funds to, or guaranties debts of, any SPV, other than as is otherwise provided herein or in the SPVother Transaction Documents; provided, however, that an Affiliate of the such SPV may provide funds to the such SPV in connection with the capitalization of the such SPV;
(x) other than organizational expenses and as otherwise expressly provided in the Transaction Documentsherein, the SPV it pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV except as expressly provided herein, it does not guarantee, and is not otherwise liable, with respect to any obligation of any of its AffiliatesAffiliates or any other Person;
(xii) any financial reports required of the SPV it comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV it is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationlimited liability company agreement or limited partnership agreement, as applicable, and other formation documents;
(xiv) the financial statements and books and records of it and the SPV and Arrow applicable Originator reflect the separate corporate existence of the such SPV;
(xv) the SPV it does not act as agent for any Originator or any Affiliate thereofof any Originator, but instead presents itself to the public as an entity having a corporation separate existence from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV it maintains a three-person board of directors, including at least one independent director, Independent Manager who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any its applicable Originator or any Affiliate thereof of such Originator (other than the such SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any its applicable Originator or any Affiliate thereofof such Originator), all as provided in its certificate or articles of incorporationlimited liability company agreement, limited partnership agreement and other formation documents and is otherwise reasonably acceptable to the Investors, the Funding Agents Majority Lenders and the Administrative Facility Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV its limited liability company, limited partnership agreement and other formation documents require (A) the affirmative vote of the independent director Independent Manager before it may (1) file a voluntary petition under Section 301 of the Bankruptcy Code may Code, (2) dissolve or liquidate, or institute proceedings to be filed by adjudicated bankrupt or insolvent, (3) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (4) file a petition seeking or consent to reorganization or relief under any applicable federal, state or provincial law relating to bankruptcy or insolvency, (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SPV, (6) make any assignment for the benefit of its creditors, (7) admit in writing its inability to pay its debts generally as they become due, or (8) take any action in furtherance of any of the foregoing, and (B) the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Master Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Master Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(iia) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has except with the prior written consent of each Managing Agent in its sole discretion, and (b) the SPV has not entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, an administration agreement with Ashland and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates; provided that a portion of its purchase price for the Receivables and Affected Assets may take the form of the arrangement of Letters of Credit hereunder for the benefit of one or more Originators;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholderan equity owner, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and;
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies in all material respects with (and causes to maintain be true and correct and complete books and records of account and minutes in all material respects) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders and board of directorsSxxxxx Xxxxxxx (US) LLP, delivered pursuant to Section 5.1(m).
Appears in 1 contract
Samples: Transfer and Administration Agreement (Ashland Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, an administration agreement with Ashland and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates; provided that a portion of its purchase price for the Receivables and Affected Assets may take the form of the arrangement of Letters of Credit hereunder for the benefit of one or more Originators;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholderequity owned, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and;
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies in all material respects with (and causes to maintain be true and correct and complete books and records of account and minutes in all material respects) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders and board of directorsSquire, Xxxxxxx & Xxxxxxx L.L.P., delivered pursuant to Section 5.1(m).
Appears in 1 contract
Samples: Transfer and Administration Agreement (Ashland Inc.)
Nonconsolidation. The Each Originator shall take all actions required to maintain SPV’s status as a separate legal entity, including (i) not holding the SPV is operated in out to third parties as other than an entity with assets and liabilities distinct from such a manner that Originator and such Originator’s other Subsidiaries; (ii) not holding itself out to be responsible for any Indebtedness of the separate corporate existence SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the SPV; (iii) preparing separate financial statements for the SPV; (iv) taking such other actions as are necessary on its part to ensure that all corporate and limited liability company procedures required by its and the one handSPV’s respective organizational documents are duly and validly taken; (v) keeping correct and complete records and books of account and corporate minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to the SPV’s separate identity. In addition to the foregoing, and each Originator or any Affiliate thereof, on shall take the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoingfollowing actions:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit maintain corporate records and books of account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xB) other than organizational expenses and continuously maintain as expressly provided in official records the Transaction Documentsresolutions, the SPV pays all expenses, indebtedness agreements and other obligations incurred by itinstruments underlying the transactions described in this Agreement;
(xiC) the SPV does not guarantee, and is not otherwise liable, maintain an arm’s-length relationship with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence shall not hold itself out as being liable for any Indebtedness of the SPV;
(xvD) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation keep its assets and its liabilities wholly separate from each such member and independently engaged in those of the business of purchasing and financing ReceivablesSPV;
(xviE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, expressly or impliedly representing or suggesting that such Originator is liable or responsible for any relative Indebtedness of the foregoing, SPV or that the assets of any such Originator or any Affiliate thereof are available to pay the creditors of the SPV;
(F) at all times have stationery and other than business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the SPV and only to those expressly permitted hereunder or under any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative AgentTransaction Document; and
(xviiH) the bylaws or the certificate or articles of incorporation comply in all material respects with (and cause to be true and correct in all material respects) each of the SPV require facts and assumptions relating to it contained in the affirmative vote opinion(s) of Sxxxxx Xxxxxxx (US) LLP, delivered pursuant to Section 5.1(m) of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directorsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Ashland Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the Rabobank Assignment, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who (A) for the five-year period prior to his or her appointment as independent manager has never not been, and during the continuation of his or her service as independent manager shall at no time be a stockholdernot be: (I) an employee, director, officerstockholder, employee member, manager, partner or associateofficer of the SPV, Xxxxx, Inc. or any relative of the foregoing, of any Originator or any Affiliate thereof their respective Affiliates (other than his or her service as an independent manager of the SPV); (II) except for CT Corporation, Corporation Service Company, Global Securitization Services, LLC, Lord Securities Corporation, AMACAR Group, L.L.C. or any of their respective Affiliates or any other similar service provider unless objected to in writing by Agent (collectively, the “Approved Service Providers”), a customer or supplier of the SPV, Xxxxx, Inc. or any of their respective Affiliates (other than his or her service as an independent manager of the SPV); or (III) any member of the immediate family of a person described in (I) or (II), (B) has, (I) prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent manager thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (II) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) if approved as an independent manager of the SPV and any other bankruptcy-remote special purpose entity formed for after the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, Closing Date and is not otherwise reasonably acceptable affiliated with an Approved Service Provider, has been consented to in writing by the Investors, the Funding Agents and the Administrative Agent; andAgent (such consent not to be unreasonably withheld or delayed);
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies with (and causes to maintain correct be true and complete books and records of account and minutes correct) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders Xxxxx, Xxxxx, Xxxxxxx and board Xxxxx LLP, delivered pursuant to Section 5.1(m) of directorsthe Existing Agreement and this Agreement.
Appears in 1 contract
Nonconsolidation. The Each Originator shall take all actions required to maintain SPV’s status as a separate legal entity, including (i) not holding the SPV is operated in out to third parties as other than an entity with assets and liabilities distinct from such a manner that Originator and such Originator’s other Subsidiaries; (ii) not holding itself out to be responsible for any Indebtedness of the separate corporate existence SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the SPV; (iii) preparing separate financial statements for the SPV; (iv) taking such other actions as are necessary on its part to ensure that all corporate and limited liability company procedures required by its and the one handSPV’s respective organizational documents are duly and validly taken; (v) keeping correct and complete records and books of account and corporate minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to the SPV’s separate identity. In addition to the foregoing, and each Originator or any Affiliate thereof, on shall take the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoingfollowing actions:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit maintain corporate records and books of account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xB) other than organizational expenses and continuously maintain as expressly provided in official records the Transaction Documentsresolutions, the SPV pays all expenses, indebtedness agreements and other obligations incurred by itinstruments underlying the transactions described in this Agreement;
(xiC) the SPV does not guarantee, and is not otherwise liable, maintain an arm’s-length relationship with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence shall not hold itself out as being liable for any Indebtedness of the SPV;
(xvD) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation keep its assets and its liabilities wholly separate from each such member and independently engaged in those of the business of purchasing and financing ReceivablesSPV;
(xviE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, expressly or impliedly representing or suggesting that such Originator is liable or responsible for any relative Indebtedness of the foregoing, SPV or that the assets of any such Originator or any Affiliate thereof are available to pay the creditors of the SPV;
(F) at all times have stationery and other than business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the SPV and only to those expressly permitted hereunder or under any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative AgentTransaction Document; and
(xviiH) the bylaws or the certificate or articles of incorporation comply in all material respects with (and cause to be true and correct in all material respects) each of the SPV require facts and assumptions relating to it contained in the affirmative vote opinion(s) of Xxxxxx Xxxxxxx (US) LLP, delivered pursuant to Section 5.1(m) of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directorsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Valvoline Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Master Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Master Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) (a) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has except with the prior written consent of each Managing Agent in its sole discretion, and (b) the SPV has not entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, an administration agreement with Valvoline and a services agreement with its independent manager, 1 and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;; 1 Squire to advise on appointment of independent manager and status of administration agreement.
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates; provided that a portion of its purchase price for the Receivables and Affected Assets may take the form of the arrangement of Letters of Credit hereunder for the benefit of one or more Originators;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholderan equity owner, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and;
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies in all material respects with (and causes to maintain be true and correct and complete books and records of account and minutes in all material respects) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders and board of directorsXxxxxx Xxxxxxx (US) LLP, delivered pursuant to Section 5.1(m).
Appears in 1 contract
Samples: Transfer and Administration Agreement (Valvoline Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation operating agreement to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent Investors and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains an office through which its business is conducted and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective AffiliatesOriginator;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation formation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directorsmembers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directorsmembers’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow each Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanager, including at least one independent directormanager, who has never been, and shall at no time be a stockholdermember, manager, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents Investors and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation operating agreement of the SPV require requires the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders members and board of directorsmanagers.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Boise Cascade Co)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each the Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent Investors and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each the Originator and its respective Affiliates (provided it may be within the same offices as the Originator and its Affiliates);
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholdersmembers’ and directorsmanagers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any the Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholder, directormember, manager, officer, employee or associate, or any relative of the foregoing, of any the Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any the Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents Investors and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation limited liability company agreement of the SPV require requires the affirmative vote of the its independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and requires the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders member and board of directorsmanagers.
Appears in 1 contract
Samples: Transfer and Administration Agreement (United Stationers Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each the Originator or any Affiliate thereofof the Originator, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Originator or any Affiliate thereof of the Originator and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Pool Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative AgentMajority Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains shall at all times maintain a plaque or other sign separate from the plaque or sign of the Originator designating for its office space and allocate, fairly and reasonably, all the overheads for shared spaces with the Originator and shall maintain a telephone listing and stationery through which all business correspondence and communication are conducted, in each case separate from those of each the Originator and its respective their Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation limited liability agreement and other formation documents and observes all necessary, appropriate and customary corporate formalitiesformalities as a limited liability company, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate limited liability company action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate limited liability company’s name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this AgreementAgreement or other Transaction Documents;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as otherwise expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its AffiliatesAffiliates or any other Person;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationlimited liability company agreement and other formation documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any the Originator or any Affiliate thereofof either the Originator, but instead presents itself to the public as a corporation separate existence from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, Independent Manager who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any the Originator or any Affiliate thereof of the Originator (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any the Originator or any Affiliate thereofof the Originator), all as provided in its certificate or articles of incorporation, limited liability company agreement and other formation documents and is otherwise reasonably acceptable to the Investors, the Funding Agents Majority Lenders and the Administrative Facility Agent; and
(xvii) the bylaws or the certificate or articles of incorporation limited liability company agreement and other formation documents of the SPV require (A) the affirmative vote of the independent director Independent Manager before the SPV may (1) file a voluntary petition under Section 301 of the Bankruptcy Code may Code, (2) dissolve or liquidate, or institute proceedings to be filed by adjudicated bankrupt or insolvent, (3) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (4) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SPV, (6) make any assignment for the benefit of the SPV’s creditors, (7) admit in writing its inability to pay its debts generally as they become due, or (8) take any action in furtherance of any of the foregoing, and (B) the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the Rabobank Assignment, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation an entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who (A) for the five-year period prior to his or her appointment as independent manager has never not been, and during the continuation of his or her service as independent manager shall at no time be a stockholdernot be: (I) an employee, director, officerstockholder, employee member, manager, partner or associateofficer of the SPV, Xxxxx, Inc. or any relative of the foregoing, of any Originator or any Affiliate thereof their respective Affiliates (other than his or her service as an independent manager of the SPV); (II) except for CT Corporation, Corporation Service Company, Global Securitization Services, LLC, Lord Securities Corporation, AMACAR Group, L.L.C. or any of their respective Affiliates or any other similar service provider unless objected to in writing by Agent (collectively, the “Approved Service Providers”), a customer or supplier of the SPV, Xxxxx, Inc. or any of their respective Affiliates (other than his or her service as an independent manager of the SPV); or (III) any member of the immediate family of a person described in (I) or (II), (B) has, (I) prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent manager thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (II) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) if approved as an independent manager of the SPV and any other bankruptcy-remote special purpose entity formed for after the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, Closing Date and is not otherwise reasonably acceptable affiliated with an Approved Service Provider, has been consented to in writing by the Investors, the Funding Agents and the Administrative Agent; andAgent (such consent not to be unreasonably withheld or delayed);
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies with (and causes to maintain correct be true and complete books and records of account and minutes correct) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders Vorys, Xxxxx, Xxxxxxx and board Xxxxx LLP, delivered pursuant to Section 5.1(m) of directorsthe Existing Agreement and this Agreement.
Appears in 1 contract
Nonconsolidation. The SPV Each of SPC and the Seller is operated in such a manner that the separate corporate existence of each of the SPVSeller and SPC, on the one hand, and each Originator or any Affiliate thereofmember of the Parent Group, on the otherother hand, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof member of the Parent Group and, without limiting the generality of the foregoing:
(i) the SPV Seller is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation Charter Documents to those activities expressly permitted hereunder and under the other Related Documents; SPC is a limited purpose entity whose activities are restricted in its Charter Documents to owning Stock in the Seller and activities related to purchasing or otherwise acquiring receivables (including thereto; and neither the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV Seller nor SPC has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Related Documents, nor has the SPV Seller or SPC entered into any agreement other than this Agreement, the other Transaction Related Documents to which it is a partyparty and, and with the prior written consent of the Investors, each Funding Agent Purchasers and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof, and;
(Aii) no member of the SPV maintains its own deposit account Parent Group or accounts, separate from those any individual at the time he or she is acting as an officer of any of its Affiliates, with commercial banking institutions, (B) such member is or has been involved in the funds day-to-day management of the SPV are not and have not been diverted to Seller or SPC (but nothing in this subclause (ii) shall prohibit any other Person or for from holding positions with any member of the Parent Group, the Seller and/or the SPC simultaneously);
(iii) other than the corporate use purchase and acceptance through capital contribution of Transferred Receivables, the SPV payment of dividends or distributions and the return of capital to the Originators, the payment of Servicing Fees (Cincluding Applicable Servicing Fees) except as may be expressly permitted to the Servicers under this Agreement and the transactions evidenced by this the Ancillary Services and Lease Agreement, the funds Seller engages and has engaged in no intercorporate transactions with any member of the SPV are not and have not been commingled with those of any of its AffiliatesParent Group;
(iv) to other than the extent that the SPV contracts or does business execution and delivery of this Agreement, SPC engages and has engaged in no intercorporate transactions with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each member of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basisParent Group;
(v) each of the SPV Seller and SPC maintains stationery through which all business correspondence corporate records and communication are conducted, in each case books of account separate from those that of each Originator member of the Parent Group, holds regular corporate meetings and its respective Affiliatesotherwise observes corporate formalities and has a business office separate from that of each member of the Parent Group;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV Seller, SPC and Arrow the Originators reflect the separate corporate existence of the SPVSeller and SPC;
(xvA) each of the Seller and SPC maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicers in connection with the servicing of the Transferred Receivables), (B) each of the Seller's and SPC's funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Parent Group and (C) the SPV does not act separate creditors of each of SPC and the Seller will be entitled to be satisfied out of the SPC's or Seller's, respectively, assets prior to any value in SPC or the Seller, respectively, becoming available to SPC's or the Seller's Stockholders, respectively;
(viii) except as otherwise expressly permitted hereunder and as provided in the Ancillary Services and Lease Agreement, under the other Related Documents and under the SPC's and Seller's Charter Documents, no member of the Parent Group (A) pays either SPC's or the Seller's expenses, (B) guarantees either SPC's or the Seller's obligations, or (C) advances funds to either SPC or the Seller for the payment of expenses or otherwise;
(ix) all business correspondence and other communications of each of SPC and the Seller are conducted in such Person's own name, on its own stationery and through a separately-listed telephone number;
(x) neither SPC nor the Seller acts as agent for any Originator or any Affiliate thereofmember of the Parent Group, but instead each presents itself to the public as a corporation an entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvixi) the SPV Seller maintains a three-person board of directors, including at least one two independent directordirectors or managers, who has never beenas applicable, and shall at no time be each of whom (A) is not a stockholderStockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof member of the Parent Group (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereofSeller), all as provided in its certificate Charter Documents, (B) has (1) prior experience as an independent director for a corporation whose Charter Documents required the unanimous consent of all independent directors or articles managers, as applicable, thereof before such corporation could consent to the institution of incorporationbankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise reasonably acceptable to the InvestorsPurchasers and the Administrative Agent;
(xii) the Charter Documents of the Seller require (A) the affirmative vote of each independent director and of SPC before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Seller, and (B) the Funding Agents Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its Stockholders and board of directors or managers, as applicable;
(xiii) SPC maintains at least two independent directors each of whom (A) is not a Stockholder, director, officer, employee or associate, or any relative of the foregoing, of any member of the Parent Group (other than the Seller), all as provided in its Charter Documents, (B) has (1) prior experience as an independent director for a corporation whose Charter Documents required the unanimous consent of all independent directors thereof before such corporation could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Purchasers and the Administrative Agent; and
(xviixiv) the bylaws or the certificate or articles Charter Documents of incorporation of the SPV SPC require (A) the affirmative vote of the each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by SPC and before SPC may vote, in its capacity as a Stockholder of the SPVSeller, in favor of a voluntary petition under Section 301 of the Bankruptcy Code being filed by the Seller, and the SPV (B) SPC to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its stockholders Stockholders and board of directors.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (K2 Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator the Originator, the Guarantor or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator the Originator, the Guarantor or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Pool Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent Investors and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’sarm's-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator the Originator, the Guarantor and its their respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation formation and limited liability company agreement and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ member and/or manager meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is may be an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate limited liability company name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPVSPV other than pursuant to this Agreement and the other Transaction Documents; providedPROVIDED, howeverHOWEVER, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationlimited liability company agreement;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Diebold Inc)
Nonconsolidation. The Each Originator shall take all actions required to maintain the SPV’s status as a separate legal entity, including (i) not holding the SPV is operated in out to third parties as other than an entity with assets and liabilities distinct from such a manner that Originator and such Originator’s other Subsidiaries; (ii) not holding itself out to be responsible for any Indebtedness of the separate corporate existence SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the SPV; (iii) preparing separate financial statements for the SPV; (iv) taking such other actions as are necessary on its part to ensure that all corporate and limited liability company procedures required by its and the one handSPV’s respective organizational documents are duly and validly taken; (v) keeping correct and complete records and books of account and corporate minutes; and (vi) not acting in any manner that could foreseeably mislead others with respect to the SPV’s separate identity. In addition to the foregoing, and each Originator or any Affiliate thereof, on shall take the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoingfollowing actions:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit maintain corporate records and books of account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xB) other than organizational expenses and continuously maintain as expressly provided in official records the Transaction Documentsresolutions, the SPV pays all expenses, indebtedness agreements and other obligations incurred by itinstruments underlying the transactions described in this Agreement;
(xiC) the SPV does not guarantee, and is not otherwise liable, maintain an arm’s-length relationship with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence shall not hold itself out as being liable for any Indebtedness of the SPV;
(xvD) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation keep its assets and its liabilities wholly separate from each such member and independently engaged in those of the business of purchasing and financing ReceivablesSPV;
(xviE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, expressly or impliedly representing or suggesting that such Originator is liable or responsible for any relative Indebtedness of the foregoing, SPV or that the assets of any such Originator or any Affiliate thereof are available to pay the creditors of the SPV;
(F) at all times have stationery and other than business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the SPV and only to those expressly permitted hereunder or under any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative AgentTransaction Document; and
(xviiH) the bylaws or the certificate or articles of incorporation comply in all material respects with (and cause to be true and correct in all material respects) each of the SPV require facts and assumptions relating to it contained in the affirmative vote opinion(s) of Squire, Xxxxxxx & Xxxxxxx L.L.P., delivered pursuant to Section 5.1(m) of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directorsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Ashland Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(iia) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has except with the prior written consent of each Managing Agent in its sole discretion, and (b) the SPV has not entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, an administration agreement with Ashland and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates; provided that a portion of its purchase price for the Receivables and Affected Assets may take the form of the arrangement of Letters of Credit hereunder for the benefit of one or more Originators;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholderequity owner, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and;
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies in all material respects with (and causes to maintain be true and correct and complete books and records of account and minutes in all material respects) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders and board of directorsSquire, Xxxxxxx & Xxxxxxx L.L.P., delivered pursuant to Section 5.1(m).
Appears in 1 contract
Samples: Transfer and Administration Agreement (Ashland Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the Bank of America Assignment, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who (A) for the five-year period prior to his or her appointment as independent manager has never not been, and during the continuation of his or her service as independent manager shall at no time be a stockholdernot be: (I) an employee, director, officerstockholder, employee member, manager, partner or associateofficer of the SPV, Xxxxx, Inc. or any relative of the foregoing, of any Originator or any Affiliate thereof their respective Affiliates (other than his or her service as an independent manager of the SPV); (II) except for CT Corporation, Global Securitization Services, LLC, Lord Securities Corporation, AMACAR Group, L.L.C. or any of their respective Affiliates (collectively, the “Approved Service Providers”), a customer or supplier of the SPV, Xxxxx, Inc. or any of their respective Affiliates (other than his or her service as an independent manager of the SPV); or (iii) any member of the immediate family of a person described in (I) or (II), (B) has, (I) prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent manager thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (II) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) if approved as an independent manager of the SPV and any other bankruptcy-remote special purpose entity formed for after the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, Closing Date and is not otherwise reasonably acceptable affiliated with an Approved Service Provider, has been consented to in writing by the Investors, the Funding Agents and the Administrative Agent; andAgent (such consent not to be unreasonably withheld or delayed);
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies with (and causes to maintain correct be true and complete books and records of account and minutes correct) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders Vorys, Xxxxx, Xxxxxxx and board of directorsXxxxx LLP, delivered pursuant to Section 5.1(m).
Appears in 1 contract
Nonconsolidation. The SPV is operated in such a manner that the ---------------- separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’sarm's-length basis;
(v) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ ' and directors’ ' meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ ' and directors’ ' meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide -------- ------- funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the Termination and Payoff Letter, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who has never been, and shall at no time be a stockholderequity owned, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporationorganizational documents, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and;
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV;
(xviii) the SPV complies with (and causes to be true and correct) each of the facts and assumptions relating to it contained in the opinion(s) of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, delivered pursuant to Section 5.1(m); and Notwithstanding the foregoing, the SPV was party to a certain receivables purchase facility with Fortis Bank S.A./N.V., which was terminated and paid off on the date hereof in accordance with the Termination and Payoff Letter, and the SPV as to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directorswhich certain Continuing Fortis Obligations exist.
Appears in 1 contract
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each the Originator or any Affiliate thereofof the Originator, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Originator or any Affiliate thereof of the Originator and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to activities related to purchasing or otherwise acquiring receivables (including the Pool Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative AgentMajority Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains shall at all times maintain a plaque or other sign separate from the plaque or sign of the Originator designating for its office space and allocate, fairly and reasonably, all the overheads for shared spaces with the Originator and shall maintain a telephone listing and stationery through which all business correspondence and communication are conducted, in each case separate from those of each the Originator and its respective their Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with all Applicable Law, its certificate of incorporation limited liability agreement and other formation documents and observes all necessary, appropriate and customary corporate formalitiesformalities as a limited liability company, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate limited liability company action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate limited liability company’s name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this AgreementAgreement or other Transaction Documents;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as otherwise expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its AffiliatesAffiliates or any other Person;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationlimited liability company agreement and other formation documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any the Originator or any Affiliate thereofof either the Originator, but instead presents itself to the public as a corporation separate existence from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, Independent Manager who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any the Originator or any Affiliate thereof of the Originator (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any the Originator or any Affiliate thereofof the Originator), all as provided in its certificate or articles of incorporation, limited liability company agreement and other formation documents and is otherwise reasonably acceptable to the Investors, the Funding Agents Majority Lenders and the Administrative Facility Agent; and
(xvii) the bylaws or the certificate or articles of incorporation limited liability company agreement and other formation documents of the SPV require (A) the affirmative vote of the independent director Independent Manager before the SPV may (1) file a voluntary petition under Section 301 of the Bankruptcy Code may Code, (2) dissolve or liquidate, or institute proceedings to be filed by adjudicated bankrupt or insolvent, (3) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (4) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (5) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the SPV, (6) make any assignment for the benefit of the SPV’s creditors, (7) admit in writing its inability to pay its debts generally as they become due, or (8) take any action in furtherance of any of the foregoing, and (B) the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Loan and Administration Agreement (Commercial Credit, Inc.)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and the Servicer and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any the Servicer, such Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation organizational documents to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has nor, after the execution of the PNC Assignment, will the SPV entered into be party to any agreement other than this Agreement, the other Transaction Documents to which it is a partyparty and a services agreement with its independent manager, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each any Originator and its respective Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation organizational documents and observes all necessary, appropriate and customary corporate limited liability company formalities, including (A) holding all regular and special stockholders’ and directorsdirectors’/managers’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually)limited liability company action, (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, provided that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness Indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles GAAP and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporationorganizational documents;
(xiv) the financial statements and books and records of the SPV and Arrow the Originators reflect the separate corporate limited liability company existence of the SPV;
(xv) the SPV does not act as agent for any Originator of the Originators or any Affiliate thereof, but instead presents itself to the public as a corporation entity separate from each such member Person and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a threefive-person board of directorsmanagers, including at least one independent directormanager, who (A) for the five-year period prior to his or her appointment as independent manager has never not been, and during the continuation of his or her service as independent manager shall at no time be a stockholdernot be: (I) an employee, director, officerstockholder, employee member, manager, partner or associateofficer of the SPV, Xxxxx, Inc. or any relative of the foregoing, of any Originator or any Affiliate thereof their respective Affiliates (other than his or her service as an independent manager of the SPV); (II) except for CT Corporation, Global Securitization Services, LLC, Lord Securities Corporation, AMACAR Group, L.L.C. or any of their respective Affiliates (collectively, the “Approved Service Providers”), a customer or supplier of the SPV, Xxxxx, Inc. or any of their respective Affiliates (other than his or her service as an independent manager of the SPV); or (iii) any member of the immediate family of a person described in (I) or (II), (B) has, (I) prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent manager thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (II) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) if approved as an independent manager of the SPV and any other bankruptcy-remote special purpose entity formed for after the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, Closing Date and is not otherwise reasonably acceptable affiliated with an Approved Service Provider, has been consented to in writing by the Investors, the Funding Agents and the Administrative Agent; andAgent (such consent not to be unreasonably withheld or delayed);
(xvii) the bylaws or the certificate or articles of incorporation organizational documents of the SPV require the affirmative vote of the independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and ; and
(xviii) the SPV complies with (and causes to maintain correct be true and complete books and records of account and minutes correct) each of the meetings facts and other proceedings assumptions relating to it contained in the opinion(s) of its stockholders Vorys, Xxxxx, Xxxxxxx and board Xxxxx LLP, delivered pursuant to Section 5.1(m) of directorsthe Existing Agreement and this Agreement.
Appears in 1 contract
Nonconsolidation. The SPV Transferor is operated in such a manner that the separate corporate existence of the SPVTransferor, on the one hand, and each Originator Tech Data or any Affiliate thereof, on the otherother hand, would shall not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV Transferor is a limited purpose corporation whose activities are restricted in its certificate Certificate of incorporation Incorporation to activities related to purchasing or otherwise acquiring receivables and related property (including the ReceivablesPool Receivables and the Related Security) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV Transferor has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV Transferor entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Class Agent and the Administrative Agent, any other agreement agreements necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV Transferor maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV Transferor are not and have not been diverted to any other Person or for other than the corporate use of the SPV Transferor (subject to the following clause (C)) and (C) ), except as may be expressly permitted by this AgreementAgreement or the other Transaction Documents, the funds of the SPV Transferor are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV Transferor and such entities for whose benefit the goods and services are provided, and each of the SPV Transferor and each such entity bears its fair share of such costs; and all material transactions between the SPV Transferor and any of its Affiliates shall be only on an arm’s-length arm's‑length basis;
(v) the SPV Transferor maintains stationery a principal executive and administrative office through which its business is conducted and a telephone number and stationery, if any, through which all business correspondence and communication are conducted, in each case separate from those of each Originator Tech Data and its respective Affiliates;
(vi) the SPV Transferor conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ ' and directors’ ' meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ ' and directors’ ' meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV Transferor (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPVTransferor) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations)Transferor;
(viii) the SPV Transferor acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV Transferor shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV Transferor advances funds to the SPVTransferor, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV Transferor otherwise supplies funds to, or guaranties debts of, the SPVTransferor; provided, however, that an Affiliate of the SPV Transferor may provide funds or other assets to the SPV Transferor in connection with the capitalization of the SPVTransferor;
(x) other than organizational expenses and as expressly provided herein and in the other Transaction Documents, the SPV Transferor pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV Transferor does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV Transferor comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV Transferor is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV Transferor and Arrow Tech Data reflect the separate corporate existence of the SPVTransferor;
(xv) the SPV Transferor does not act as agent for any Originator Tech Data or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing the Receivables;
(xvi) the SPV Transferor maintains a three-person three‑person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation; provided that it will not be a breach of this clause if the Transferor fails to have an independent director as a result of the death, disability, or incapacity of the existing independent director or the failure of such director to satisfy the criteria for an independent director set forth in its certificate or articles of incorporation if the Transferor promptly notifies the Administrative Agent of such death, disability, incapacity or failure and is otherwise appoints a new independent director reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require Transferor requires the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPVTransferor, and the SPV Transferor to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Tech Data Corp)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator the Originator, NSC or any Affiliate thereofof either the Originator or NSC, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator the Originator, NSC or any Affiliate thereof of either the Originator or NSC and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate articles of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent Investors and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) ), except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(iv) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’sarm's-length basis;
(v) the SPV maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator the Originator, NSC and its respective their Affiliates;
(vi) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ ' and directors’ ' meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ ' and directors’ ' meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ix) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(x) other than organizational expenses and as expressly provided in the Transaction Documentsherein, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) the financial statements and books and records of the SPV SPV, NSC and Arrow the Originator reflect the separate corporate existence of the SPV;
(xv) the SPV does not act as agent for any Originator the Originator, NSC or any Affiliate thereofof either the Originator or NSC, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator the Originator, NSC or any Affiliate thereof of the Originator or NSC (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator the Originator, NSC or any Affiliate thereofof the Originator or NSC), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents Investors and the Administrative Agent; and
(xvii) the bylaws or the certificate or articles of incorporation of the SPV require (i) the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and (ii) the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Norfolk Southern Corp)
Nonconsolidation. The SPV is operated in such a manner that the separate corporate existence of the SPV, on the one hand, and each Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any Originator or any Affiliate thereof and, without limiting the generality of the foregoing:
(i) the SPV is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(iii) the SPV has not engaged, and does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of the Investors, each Funding Agent and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(A) the SPV maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV are not and have not been diverted to any other Person or for other than the corporate use of the SPV and (C) except as may be expressly permitted by this Agreement, the funds of the SPV are not and have not been commingled with those of any of its Affiliates;
(ivi) to the extent that the SPV contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV and such entities for whose benefit the goods and services are provided, and each of the SPV and each such entity bears its fair share of such costs; and all material transactions between the SPV and any of its Affiliates shall be only on an arm’s-length basis;
(vi) the SPV maintains stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vii) the SPV conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(viiii) all decisions with respect to its business and daily operations are independently made by the SPV (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPV) and are not dictated by any Affiliate of the SPV (it being understood that the Master Servicer, which is an Affiliate of the SPV, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPV, to perform certain of such operations, functions and obligations);
(viiiiii) the SPV acts solely in its own corporate name and through its own authorized officers and agents, and no Affiliate of the SPV shall be appointed to act as its agent, except as expressly contemplated by this Agreement;
(ixiv) no Affiliate of the SPV advances funds to the SPV, other than as is otherwise provided herein or in the other Transaction Documents, and no Affiliate of the SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided, however, that an Affiliate of the SPV may provide funds to the SPV in connection with the capitalization of the SPV;
(xv) other than organizational expenses and as expressly provided in the Transaction Documents, the SPV pays all expenses, indebtedness and other obligations incurred by it;
(xivi) the SPV does not guarantee, and is not otherwise liable, with respect to any obligation of any of its Affiliates;
(xiivii) any financial reports required of the SPV comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its Affiliates;
(xiiiviii) at all times the SPV is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xivix) the financial statements and books and records of the SPV and Arrow reflect the separate corporate existence of the SPV;
(xvx) the SPV does not act as agent for any Originator or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvixi) the SPV maintains a three-person board of directors, including at least one independent director, who has never been, and shall at no time be a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator or any Affiliate thereof (other than the SPV and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents and the Administrative Agent; and
(xviixii) the bylaws or the certificate or articles of incorporation of the SPV require the affirmative vote of the independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPV, and the SPV to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors.
Appears in 1 contract
Samples: Transfer and Administration Agreement (Arrow Electronics Inc)
Nonconsolidation. The SPV Each of the Transferor and the Seller is operated in such a manner that the separate corporate existence of each of the SPVTransferor and the Seller, on the one hand, and each the Originator or any Affiliate thereof, on the other, would not be disregarded in the event of the bankruptcy or insolvency of any of the Originator or any Affiliate thereof thereof, the Transferor or the Seller and, without limiting the generality of the foregoing:
(i) each of the SPV Transferor and the Seller is a limited purpose corporation whose activities are restricted in its certificate of incorporation to activities related to purchasing or otherwise acquiring receivables (including the Receivables) and related assets and rights and conducting any related or incidental business or activities it deems necessary or appropriate to carry out its primary purpose, including entering into agreements like the Transaction Documents;
(ii) neither the SPV Transferor nor the Seller has not engaged, and does not or presently engageengages, in any activity other than those activities expressly permitted hereunder and under the other Transaction Documents, nor has the SPV Transferor or the Seller entered into any agreement other than this Agreement, the other Transaction Documents to which it is a party, and with the prior written consent of each of the Investors, each Funding Administrative Agent and the Administrative AgentControl Party, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(iii) (A) each of the SPV Transferor and the Seller maintains its own deposit account or accounts, separate from those of any of its Affiliates, with commercial banking institutions, (B) the funds of the SPV Transferor and the Seller are not and have not been diverted to any other Person or for any use other than the corporate use of the SPV Transferor or the Seller, as applicable and (C) ), except as may be expressly permitted by this AgreementAgreement and except, in the case of the Transferor only, in connection with the Performance Guarantor’s integrated cash management system, the funds of the SPV Transferor and the Seller are not and have not been commingled with those of any of its Affiliatesother Person;
(iv) to the extent that the SPV Transferor or the Seller contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing are fairly allocated to or among the SPV Transferor or the Seller, as the case may be, and such entities for whose benefit the goods and services are provided, and each of the SPV Transferor and the Seller, as the case may be, and each such entity bears its fair share of such costs; and all material transactions between the SPV Transferor or the Seller, as applicable, and any of its their respective Affiliates shall be only on an arm’s-length basis;
(v) each of the SPV Transferor and the Seller maintains a principal executive and administrative office through which its business is conducted and a telephone number and stationery through which all business correspondence and communication are conducted, in each case separate from those of each Originator and its respective Affiliates;
(vi) each of the SPV Transferor and the Seller conducts its affairs strictly in accordance with its certificate of incorporation and observes all necessary, appropriate and customary corporate formalities, including (A) holding all regular and special stockholders’ and directors’ meetings appropriate to authorize all corporate action (which, in the case of regular stockholders’ and directors’ meetings, are held at least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all resolutions or consents necessary to authorize actions taken or to be taken, and (D) maintaining accurate and separate books, records and accounts, including intercompany transaction accounts;
(vii) all decisions with respect to its business and daily operations are independently made by the SPV Transferor or the Seller, as applicable (although the officer making any particular decision may also be an employee, officer or director of an Affiliate of the SPVTransferor or the Seller, as applicable) and are not dictated by any Affiliate of the SPV Transferor or the Seller (it being understood that the Master Servicer, which is an Affiliate of the SPVTransferor and the Seller, will undertake and perform all of the operations, functions and obligations of it set forth herein and it may appoint Sub-Servicers, which may be Affiliates of the SPVTransferor and the Seller, to perform certain of such operations, functions and obligations);
(viii) each of the SPV Transferor and the Seller acts solely in its own corporate name and through its own authorized officers and agents, has not held itself out as a “division” or “part” of any other Person, and no Affiliate of the SPV such Person shall be appointed to act as its agent, except as expressly contemplated permitted by this AgreementAgreement and the other Transaction Documents;
(ix) no Affiliate of the SPV Transferor or the Seller advances funds to the SPVTransferor or the Seller, other than as is otherwise expressly provided herein or in the other Transaction Documents, and no Affiliate of the SPV Transferor or the Seller otherwise supplies funds to, or guaranties debts of, the SPVTransferor or the Seller; provided, however, that the Transferor, as an Affiliate of the SPV Seller, may provide funds to the SPV Seller in connection with the capitalization of the SPVSeller;
(x) other than organizational expenses and as expressly provided in herein, each of the Transaction Documents, Transferor and the SPV Seller pays all expenses, indebtedness and other obligations incurred by it;
(xi) neither the SPV does not guaranteeTransferor nor the Seller guarantees, and or is not otherwise liableliable for, with respect to any obligation of any of its their respective Affiliates;
(xii) any financial reports required of the SPV Transferor and the Seller comply with generally accepted accounting principles and are issued separately from, but may be consolidated with, any reports prepared for any of its their respective Affiliates;
(xiii) at all times each of the SPV Transferor and the Seller is adequately capitalized to engage in the transactions contemplated in its certificate of incorporation;
(xiv) neither the financial statements and books and records of Transferor nor the SPV and Arrow reflect the separate corporate existence of the SPV;
(xv) the SPV does not act Seller acts as agent for any Originator the other or any Affiliate thereof, but instead presents itself to the public as a corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xvixv) each of the SPV Transferor and the Seller maintains a three-five person board of directors, including at least one independent director, director who has never been, and shall at no time be be, a stockholder, director, officer, employee or associate, or any relative of the foregoing, of any Originator Affiliate of the Transferor or any Affiliate thereof the Seller (other than the SPV Seller and any other bankruptcy-remote special purpose entity formed for the sole purpose of securitizing, or facilitating the securitization of, financial assets of any Originator the Transferor or any Affiliate thereof), all as provided in its certificate or articles of incorporation, and is otherwise reasonably acceptable to the Investors, the Funding Agents Administrative Agent and the Administrative Agent; andInsurer;
(xviixvi) the bylaws or the certificate or articles of incorporation of each of the SPV Transferor and the Seller require (A) the affirmative vote of the an independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the SPVsuch Person, and the SPV (B) such Person to maintain correct and complete books and records of account and minutes of the meetings and other proceedings of its stockholders and board of directors; and
(xvii) RACC hereby agrees that it will retain all ERISA liabilities related to its employees who provide services to GARC or RARC, and GARC or RARC, respectively, will pay to RACC its pro rata share of ERISA contributions for RACC’s employees who provide services to GARC or RARC, respectively. Without limiting the foregoing, all of the factual statements and assumptions relating to the Transferor and the Seller that are set forth in each of the “true sale” and “non-consolidation” opinions of Xxxxxxx XxXxxxxxx LLP, delivered pursuant to Section 5.1, are true and correct.
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