Nonconsolidation. The Originator has taken and will continue to take all actions required to maintain the Depositor’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that: (A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor; (B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein); (C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture); (D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and (E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documents.
Appears in 3 contracts
Samples: Purchase Agreement (Commercial Credit, Inc.), Purchase Agreement (Commercial Credit, Inc.), Purchase Agreement (Commercial Credit, Inc.)
Nonconsolidation. The Originator Depositor has taken and will continue to take all actions required to maintain the DepositorIssuer’s status as a separate legal entity, including, without limitation, (i1) not holding the Depositor Issuer out to third parties as other than an entity with assets and liabilities distinct from the Originator Depositor and the OriginatorDepositor’s other Subsidiaries; (ii2) other than by reason of owning the membership residual interest of the DepositorIssuer, not holding itself out to be responsible for any decisions or actions relating to the Depositor Issuer (except for decisions or actions as a memberCertificateholder); (iii3) preparing unaudited separate financial statements for the Depositor Issuer (which may be consolidated with the OriginatorDepositor); (iv4) taking such other actions as are necessary on its part to ensure that all procedures required by its and the DepositorIssuer’s certificate of formation and limited liability company agreement, and certificate of trust and Trust Agreement, respectively, are duly and validly taken; (v5) keeping correct and complete records and books of account and corporate minutes; and (vi6) not acting in any manner that could foreseeably materially mislead others with respect to the DepositorIssuer’s separate identity. In addition to the foregoing, the Originator Depositor has taken and will continue to take all necessary actions so that:
(Ai) the Originator Depositor shall maintain corporate records and books of account and corporate minutes separate from those of the DepositorIssuer;
(Bii) the Originator Depositor shall maintain an arm’s-length relationship with the Depositor Issuer and shall not hold itself out as being liable for any Indebtedness of the Depositor Issuer (other than certain indemnification obligations of the Depositor Issuer provided herein);
(Ciii) the Originator Depositor shall keep its assets and its liabilities wholly separate from those of the Depositor Issuer (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(Div) the Originator Depositor shall at all times limit its transactions with the Depositor Issuer only to those expressly permitted hereunder or under any other Transaction Document; and
(Ev) the Originator Depositor shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator Depositor contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documents.
Appears in 3 contracts
Samples: Sale and Servicing Agreement (Commercial Credit, Inc.), Sale and Servicing Agreement (Commercial Credit, Inc.), Sale and Servicing Agreement (Commercial Credit, Inc.)
Nonconsolidation. The Originator has taken and will continue to take all actions required to maintain the DepositorSPV’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor SPV out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest capital stock of the DepositorSPV, not holding itself out to be responsible for any decisions or actions relating to the Depositor SPV (except for decisions or actions as a membershareholders); (iii) preparing unaudited separate financial statements for the Depositor SPV (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the DepositorSPV’s certificate respective certificates of formation incorporation and limited liability company agreement, respectively, by-laws 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 materially mislead others with respect to the DepositorSPV’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the DepositorSPV;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor SPV and shall not hold itself out as being liable for any Indebtedness of the Depositor SPV (other than certain indemnification obligations of the Depositor SPV provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor SPV (except with respect to any commingled Collections to the extent permitted under this the Second Tier Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP Xxxxx & Xxx Xxxxx PLLC delivered pursuant to the terms Section 4.1(k) of the Transaction DocumentsSecond Tier Agreement.
Appears in 3 contracts
Samples: Sale Agreement (Commercial Credit, Inc.), Sale Agreement (Commercial Credit, Inc.), Sale Agreement (Commercial Credit, Inc.)
Nonconsolidation. The Originator Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has taken not engaged, and will continue does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Lenders and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower's business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) Borrower shall compensate all actions required employees, consultants and agents directly or indirectly through reimbursement of the Parent, from the Borrower's bank accounts, for services provided to maintain the Depositor’s status as Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement;
(iv) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Borrower and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the DepositorParent, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables, the acceptance of Subordinated Loans pursuant to the Subordinated Notes, the payment of distributions and the return of capital to the Member, the payment of Servicing Fees to the Servicer under this Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings and otherwise observes limited liability company formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower's assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement the Borrower'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 separate creditors of the Borrower will be entitled to be satisfied out of the Borrower's assets prior to any value in the Borrower becoming available to the Member;
(ix) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower's organizational documents, no member of the Parent Group (A) pays the Borrower's expenses, (B) guarantees the Borrower's obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(x) all business correspondence and other communications of the Borrower are conducted in the Borrower's own name, on its own stationery and through a separately-listed telephone number;
(xi) Borrower shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xii) Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xiii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiv) the Borrower 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 Borrower), all as provided in its limited liability company agreement, (B) has (1) prior experience as an independent director for an entity whose organizational 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 two years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Lenders and the Administrative Agent; and
(xv) the limited liability company agreement of the Borrower requires (A) the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower, and (B) the Borrower to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of directors.
Appears in 2 contracts
Samples: Receivables Funding Agreement (Superior Telecom Inc), Receivables Funding Agreement (Alpine Group Inc /De/)
Nonconsolidation. The Originator has taken and will continue to Seller shall take all actions required to maintain the DepositorBuyer’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor Buyer out to third parties as an entity other than an entity with assets and liabilities distinct from the Originator Seller and the OriginatorSeller’s other Subsidiariessubsidiaries; provided that the assets of the Buyer may be consolidated into the assets of the Seller for tax and accounting purposes and may be included in the publicly-filed financial statements of the Seller; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any indebtedness or other liability of the Buyer or, other than by reason of owning equity interests of the Buyer, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)Buyer; (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures material corporate or limited liability company procedures, as applicable, required by its and the DepositorBuyer’s certificate of formation and limited liability company agreement, respectively, respective constituent documents are duly and validly taken; (v) keeping correct and complete (in all material respects) records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the DepositorBuyer’s separate identity. In addition to the foregoing, the Originator has taken and will continue to Seller shall take all necessary actions so thatthe following actions:
(A1) the Originator The Seller shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;Buyer.
(B2) the Originator The Seller shall maintain an arm’s-length relationship with the Depositor Buyer and shall not hold itself out as being liable for any Indebtedness indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);Buyer.
(C3) the Originator The Seller shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to Buyer; provided that the extent permitted under this Agreement, assets of the Sale Buyer may be consolidated into the assets of the Seller for tax and Servicing Agreement or the Indenture);accounting purposes.
(D4) the Originator The Seller shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder take or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) refrain from taking, as applicable, each of the facts and assumptions relating to the Originator contained activities specified or assumed in the non-consolidation opinion of Xxxxxx Xxxxxx Xxxxxxxx Winston & Sxxxxx LLP delivered pursuant to on the terms of Closing Date, upon which the Transaction Documentsconclusions expressed therein are based.
Appears in 2 contracts
Samples: Purchase and Contribution Agreement (Monroe Capital Income Plus Corp), Purchase and Contribution Agreement (Monroe Capital Income Plus Corp)
Nonconsolidation. The Each Originator has taken and will continue to shall take all actions required to maintain the DepositorSPV’s status as a separate legal entity, including, without limitation, including (i) not holding the Depositor SPV out to third parties as other than an entity with assets and liabilities distinct from the such Originator and the such Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any Indebtedness of the SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)SPV; (iii) preparing unaudited having separate financial statements for the Depositor (SPV, which may be consolidated with under the Originator)financial statements of Xxxxx, Inc.; (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 DepositorSPV’s certificate of formation and limited liability company agreement, respectively, 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 materially mislead others with respect to the DepositorSPV’s separate identity. In addition to the foregoing, each Originator shall take the Originator has taken and will continue to take all necessary actions so thatfollowing actions:
(A) the Originator shall maintain corporate company records and books of account and corporate minutes separate from those of the DepositorSPV;
(B) continuously maintain as official records the Originator shall resolutions, agreements and other instruments underlying the transactions described in this Agreement;
(C) maintain an arm’s-length relationship with the Depositor SPV and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein)SPV;
(CD) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture)SPV;
(DE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV or expressly or impliedly representing or suggesting that such Originator shall is liable or responsible for any Indebtedness of the SPV or that the assets of such Originator are available to pay the creditors of the SPV;
(F) at all times have stationery and other business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the Depositor SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(EH) the Originator shall comply in all material respects with (and cause to be true and correctcorrect in all material respects) each of the facts and assumptions relating to the Originator it contained in the opinion opinion(s) of Xxxxxx Xxxxxx Xxxxxxxx LLP Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, delivered pursuant to the terms Section 5.1(m) of the Transaction DocumentsExisting Agreement (as defined in the Second Tier Agreement) and the Second Tier Agreement.
Appears in 2 contracts
Samples: Sale Agreement (Greif Inc), Sale Agreement (Greif Inc)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not holding the Depositor out to third parties as engaged, and does not presently engage, in any business or other activity other than an entity those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with assets and liabilities distinct from the Originator prior written consent of the Administrative Agent and the Originator’s Requisite Lenders, any other Subsidiaries; agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) other than the Borrower has duly appointed a board of directors and its business is managed solely by reason its own officers and directors, each of owning whom when acting for the membership interest Borrower shall be acting solely in his or her capacity as an officer or director of the DepositorBorrower and not as an officer, not holding itself out to be responsible for director, employee or agent of any decisions or actions relating to member of the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator Borrower shall maintain corporate records compensate all consultants and books of account and corporate minutes separate from those agents directly or indirectly through reimbursement of the DepositorParent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(Biv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall maintain an arm’s-length relationship with terms of the Depositor Administrative Services Agreement from its own funds, and shall not hold itself out as being liable for any Indebtedness of the Depositor allocate all other shared overhead expenses (including telephone and other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreementutility charges, the Sale services of shared consultants and Servicing Agreement or the Indenture);
(Dagents, and reasonable legal and auditing expenses) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower 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 Borrower), all as provided in its certificate of incorporation, (B) has (1) prior experience as an independent director for an entity whose organizational 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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Administrative Agent, and the retention arrangement with such independent directors requires them to consider the interests of Borrower;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital; and
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinion delivered by Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP with respect to true sale and non-substantive consolidation matters.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Nonconsolidation. The Originator has taken and will continue to take all actions required to maintain the Depositor’s status as a separate legal entity, including, without limitation, (i) The Seller is a limited purpose entity whose activities are restricted in its Charter Documents to those activities expressly permitted hereunder and under the other Facility Documents and the Seller has not holding the Depositor out to third parties as engaged, nor does it presently engage, in any activity other than an entity those activities expressly permitted hereunder and under the other Facility Documents, nor has the Seller entered into any agreement other than this Purchase Agreement, the other Facility Documents and, with assets and liabilities distinct from the Originator prior written consent of the Purchaser and the Originator’s Agent, any other Subsidiaries; material agreement necessary to carry out more effectively the provisions and purposes hereof or thereof.
(ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete The Seller maintains records and books of account separate from that of Parent, ACCO and minutes; each Originator, holds annual meetings and (vi) not acting in any manner otherwise observes organizational formalities, has a business office separate from that could foreseeably materially mislead others with respect of Parent, ACCO and each Originator and to the Depositor’s separate identity. In addition to extent that the foregoingParent, ACCO or the Originators share office space or services, the Originator has taken associated costs will be fairly and will continue to take all necessary actions so that:reasonably allocated among them.
(iii) The financial statements and books and records of the Seller, Parent, ACCO and the Originators reflect the separate corporate existence of the Seller.
(A) The Seller maintains its assets separately from the assets of Parent, ACCO and each Originator shall maintain corporate records (including through the maintenance of separate bank accounts and books of account and corporate minutes separate from those except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Depositor;
Transferred Receivables), (B) the Originator shall maintain an arm’s-length relationship Seller’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 Parent, ACCO or any Originator, except for such commingling as is permitted under this Purchase Agreement and the Depositor other Facility Documents and (C) the separate creditors of the Seller will be entitled to be satisfied out of the Seller’s assets, prior to any value in the Seller becoming available to the Seller’s owners and the Seller shall not hold itself out as being liable for the debt of any Indebtedness other entity including Parent, ACCO and the Originators.
(v) Except as otherwise expressly permitted hereunder, under the other Facility Documents and under the Seller’s Charter Documents, neither Parent, ACCO nor any Originator (A) pays the Seller’s expenses, (B) guarantees the Seller’s obligations, or (C) advances funds to the Seller for the payment of expenses or otherwise.
(vi) All business correspondence and other communications of the Depositor Seller are conducted in such Person’s own name, on its own stationery.
(vii) The Seller does not act as agent for Parent, ACCO or any Originator, but instead each presents itself to the public as a limited liability company or a corporation, as the case may be, separate from each such member and independently engaged in the business permitted under such Person’s Charter Documents.
(viii) The Seller maintains at least one independent manager, who (A) is not a Stockholder, director, officer, employee or associate, or any relative of the foregoing, of Parent, ACCO or any of its Subsidiaries or Affiliates (other than certain indemnification obligations his or her service as independent director, special member or other similar capacity); (B) is not a beneficial owner at the time of the Depositor provided herein);
individual’s appointment, or at any time thereafter while serving in such capacity, of any voting securities of Parent, ACCO or any of their respective Subsidiaries or Affiliates; (C) is not affiliated with a significant customer, supplier or creditor of Parent, ACCO or any of their respective Subsidiaries or Affiliates; (D) is not affiliated with a company of which Parent, ACCO or any of their respective Subsidiaries or Affiliates is a significant customer or supplier; (E) does not have any significant personal services contract(s) with Parent, ACCO or any of their respective Subsidiaries or Affiliates (other than his or her service as independent director, special member or other similar capacity); and (F) is not a spouse, parent, sibling or child of any person describes in (A) through (E) above.
(ix) The Charter Documents of the Originator shall keep its assets Seller require (A) the affirmative vote of the independent manager of the Seller before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Seller, and its liabilities wholly (B) the Seller to maintain (1) correct and complete books and records of account separate from those of the Depositor Parent, ACCO or any Originator and (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D2) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each minutes of the facts meetings and assumptions relating to the Originator contained in the opinion other proceedings of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms its Stockholders and board of the Transaction Documentsdirectors or managers, as applicable.
Appears in 1 contract
Nonconsolidation. The Originator Seller is operated in such a manner that the separate corporate existence of the Seller, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Seller is a limited purpose corporation whose activities are restricted in its articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Seller has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Seller entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Seller has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for the Seller shall be acting solely in his or her capacity as an officer or director of the Seller and not as an officer, director, employee or agent of any member of the Parent Group;
(A) Seller shall compensate all actions required employees (if any), consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Seller by such employees (if any), consultants and agents and, to the extent any employee (if any), consultant or agent of the Seller is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Seller and such member of the Parent Group and (B) Seller shall not have any employees;
(iv) Seller shall pay its own incidental administrative costs and expenses from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Seller and the OriginatorParent on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller’s other Subsidiaries; organizational documents, no member of the Parent Group (iiA) pays the Seller’s expenses, (B) guarantees the Seller’s obligations, or (C) advances funds to the Seller for the payment of expenses or otherwise;
(v) other than by reason the purchase and acceptance through capital contribution of owning Transferred Receivables pursuant to the membership interest Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Member, the payment of Servicing Fees to the Servicer under the Sale Agreement, the Seller engages and has engaged in no intercorporate transactions with any member of the Depositor, not holding itself out to be responsible for any decisions or actions relating to Parent Group;
(vi) the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete Seller maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and minutes; otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Seller and each member of the Parent Group reflect the separate existence of the Seller, (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Seller’s assets are not available to the creditors of any member of the Parent Group and (viC) not acting in any manner that could foreseeably materially mislead others with respect the Parent’s public bond indentures and the Credit Agreement expressly permit sales of Receivables to the Depositor’s Seller on the understanding that the Seller is a separate identity. In addition to entity from the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator shall maintain corporate records and books Seller maintains its assets separately from the assets of account and corporate minutes separate from those each member of the Depositor;
Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) the Originator shall maintain an arm’s-length relationship Seller’s funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with the Depositor and shall not hold itself out as being liable for those of any Indebtedness member of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
Parent Group and (C) the Originator shall keep its assets and its liabilities wholly separate from those creditors of the Depositor Seller will be entitled, on the winding-up of the Seller, to be satisfied out of the Seller’s assets prior to any value in the Seller becoming available to the Member;
(except ix) all business correspondence and other communications of the Seller are conducted in the Seller’s own name, on its own stationery, invoice and checks and through a separately-listed telephone number;
(x) the Seller has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Seller shall respond to any inquiries with respect to any commingled Collections ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the extent permitted under this Agreement, Administrative Agent for the Sale and Servicing Agreement or benefit of the Indenture)Purchasers;
(Dxii) the Originator shall Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Seller maintains at least one independent director who (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 times limit as provided in its transactions with certificate of incorporation, (B) has (1) prior experience as an independent director for an entity whose organizational documents required the Depositor only unanimous consent of all independent directors thereof before such corporation could consent to those expressly permitted hereunder 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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Administrative Agent, and the retention arrangement with such independent directors requires them to consider the interest of Seller;
(xiv) the certificate of incorporation of the Seller requires the affirmative vote of each independent director before a voluntary petition under the Bankruptcy Code or any other Transaction Documentapplicable federal, state, provincial or foreign bankruptcy or other similar law, including the BIA or the CCAA, may be filed by the Seller;
(xv) Seller shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of directors;
(xvi) Seller shall not hold out its credit as being available to satisfy obligations of others;
(xvii) Seller shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Seller shall correct any known misunderstanding regarding its separate identity; and
(Exix) the Originator Seller shall comply with (and cause to be true and correct) each maintain adequate capital in light of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentsits contemplated business operations.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Georgia Gulf Corp /De/)
Nonconsolidation. The Each Originator has taken and will continue to shall take all actions required to maintain the DepositorSPV’s status as a separate legal entity, including, without limitation, including (i) not holding the Depositor SPV out to third parties as other than an entity with assets and liabilities distinct from the such Originator and the such Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any Indebtedness of the SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)SPV; (iii) preparing unaudited having separate financial statements for the Depositor (SPV, which may be consolidated with under the Originator)financial statements of Xxxxx, Inc.; (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 DepositorSPV’s certificate of formation and limited liability company agreement, respectively, 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 materially mislead others with respect to the DepositorSPV’s separate identity. In addition to the foregoing, each Originator shall take the Originator has taken and will continue to take all necessary actions so thatfollowing actions:
(A) the Originator shall maintain corporate company records and books of account and corporate minutes separate from those of the DepositorSPV;
(B) continuously maintain as official records the Originator shall resolutions, agreements and other instruments underlying the transactions described in this Agreement;
(C) maintain an arm’s-length relationship with the Depositor SPV and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein)SPV;
(CD) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture)SPV;
(DE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV or expressly or impliedly representing or suggesting that such Originator shall is liable or responsible for any Indebtedness of the SPV or that the assets of such Originator are available to pay the creditors of the SPV;
(F) at all times have stationery and other business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the Depositor SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(EH) the Originator shall comply in all material respects with (and cause to be true and correctcorrect in all material respects) each of the facts and assumptions relating to the Originator it contained in the opinion opinion(s) of Xxxxxx Xxxxxx Xxxxxxxx LLP Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, delivered pursuant to the terms Section 5.1(l) of the Transaction DocumentsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Greif Inc)
Nonconsolidation. The Originator Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) (A) Borrower shall compensate all actions required consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(iv) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Borrower and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the DepositorParent, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documents.Administrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower 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 Borrower), all as provided in its certificate of incorporation, (B) has (1) prior experience as an independent director for an entity whose organizational 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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Administrative Agent, and the retention arrangement with such independent directors requires them to consider the interests of Borrower;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Nonconsolidation. The Originator Borrower is operated in such a manner that ---------------- the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has taken not engaged, and will continue does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Lenders and the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) Borrower shall compensate all actions required employees, consultants and agents directly or indirectly through reimbursement of the Parent, from the Borrower's bank accounts, for services provided to maintain the Depositor’s status as Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of Parent on a separate legal entitybasis which reflects the respective services rendered to the Borrower and Parent and in accordance with the terms of the Administrative Services Agreement;
(iii) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement, from its own funds and allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Borrower and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the DepositorParent, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered;
(iv) other than the purchase and acceptance through capital contribution of Transferred Receivables, the acceptance of Subordinated Loans pursuant to the Subordinated Notes, the payment of distributions and the return of capital to the Member, the payment of Servicing Fees to the Servicer under this Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(v) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings and otherwise observes limited liability company formalities and has a business office separate from that of each member of the Parent Group;
(vi) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and the consolidated financial statements of the Parent Group shall contain a footnote to the effect that the Borrower's assets are not available to the creditors of any other member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement the Borrower'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 separate creditors of the Borrower will be entitled to be satisfied out of the Borrower's assets prior to any value in the Borrower becoming available to the Member;
(viii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower's organizational documents, no member of the Parent Group (A) pays the Borrower's expenses, (B) guarantees the Borrower's obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower's own name, on its own stationery and through a separately-listed telephone number;
(x) Borrower shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower 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 Borrower), all as provided in its limited liability company agreement, (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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Lenders and the Administrative Agent; and
(xiv) the limited liability company agreement of the Borrower requires (A) the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower, and (B) the Borrower to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of directors.
Appears in 1 contract
Samples: Receivables Funding Agreement (Imperial Sugar Co /New/)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not holding the Depositor out to third parties as engaged, and does not presently engage, in any business or other activity other than an entity those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with assets and liabilities distinct from the Originator prior written consent of the Administrative Agent and the Originator’s Requisite Lenders, any other Subsidiaries; agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) other than the Borrower has duly appointed a board of directors and its business is managed solely by reason its own officers and directors, each of owning whom when acting for the membership interest Borrower shall be acting solely in his or her capacity as an officer or director of the DepositorBorrower and not as an officer, not holding itself out to be responsible for director, employee or agent of any decisions or actions relating to member of the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator Borrower shall maintain corporate records compensate all consultants and books of account and corporate minutes separate from those agents directly or indirectly through reimbursement of the DepositorParent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(Biv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall maintain an arm’s-length relationship with terms of the Depositor Administrative Services Agreement from its own funds, and shall not hold itself out as being liable for any Indebtedness of the Depositor allocate all other shared overhead expenses (including telephone and other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreementutility charges, the Sale services of shared consultants and Servicing Agreement or the Indenture);
(Dagents, and reasonable legal and auditing expenses) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: (i) shall not have been at the time of his or her appointment or at any time during the preceding five years, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any of their respective subsidiaries or affiliates (other than the Borrower), (B) a supplier to any of the Independent Parties, (C) an entity controlling or under common control with any partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any director, officer, employee, associate, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (ii) has 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, state or provincial law relating to bankruptcy and (iii) has at least three (3) 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. The Borrower shall give the Lenders notice, in writing, not less than ten (10) days prior to the effective date of any decision to appoint a new director of the Borrower as an “Independent Director”, and shall certify to the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital; and
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinion delivered by Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP and Gowling WLG (Canada) LLP, Ontario with respect to true sale and non-substantive consolidation matters.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Nonconsolidation. The Each Originator has taken and will continue to shall take all actions required to maintain the DepositorSPV’s status as a separate legal entity, including, without limitation, including (i) not holding the Depositor SPV out to third parties as other than an entity with assets and liabilities distinct from the such Originator and the such Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any Indebtedness of the SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)SPV; (iii) preparing unaudited having separate financial statements for the Depositor (SPV, which may be consolidated with under the Originator)financial statements of Xxxxx, Inc.; (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 DepositorSPV’s certificate of formation and limited liability company agreement, respectively, 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 materially mislead others with respect to the DepositorSPV’s separate identity. In addition to the foregoing, each Originator shall take the Originator has taken and will continue to take all necessary actions so thatfollowing actions:
(A) the Originator shall maintain corporate company records and books of account and corporate minutes separate from those of the DepositorSPV;
(B) continuously maintain as official records the Originator shall resolutions, agreements and other instruments underlying the transactions described in this Agreement;
(C) maintain an arm’s-length relationship with the Depositor SPV and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein)SPV;
(CD) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture)SPV;
(DE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV or expressly or impliedly representing or suggesting that such Originator shall is liable or responsible for any Indebtedness of the SPV or that the assets of such Originator are available to pay the creditors of the SPV;
(F) at all times have stationery and other business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the Depositor SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(EH) the Originator shall comply in all material respects with (and cause to be true and correctcorrect in all material respects) each of the facts and assumptions relating to the Originator it contained in the opinion opinion(s) of Xxxxxx Xxxxxx Xxxxxxxx LLP Xxxxx, Xxxxx, Xxxxxxx and Xxxxx LLP, delivered pursuant to the terms Section 5.1(m) of the Transaction DocumentsExisting Agreement (as defined in the Second Tier Agreement) and the Second Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Greif, Inc)
Nonconsolidation. The Originator has taken Company agrees that so long as any Notes are Outstanding, it will be operated such that it will not be substantively consolidated in the bankruptcy estate of the Parent or any Affiliate thereof and will continue to take all actions required to maintain not have its separate existence disregarded in the Depositor’s status as event of a separate legal entitybankruptcy of the Parent or Affiliate thereof. Without limiting the foregoing, includingthe Company agrees that:
(a) it will pay its own expenses, without limitation, (i) not holding neither the Depositor out to third parties as Sellers nor the Parent will guarantee any of the Company's obligations other than an entity with assets pursuant to the Note Purchase Agreement and liabilities distinct from neither the Originator Sellers, the Parent nor any Affiliate thereof will lend funds to the Company for the payment of expenses;
(b) it will conduct its business exclusively on its own stationery and all correspondence by the Originator’s other Subsidiaries; Company will be in its own name;
(iic) it will not permit the Sellers (other than by reason of owning the membership interest Managing Member), the Parent or any Affiliate thereof to be involved in the daily management of the DepositorCompany; PROVIDED, HOWEVER, an officer of the Parent or any such Affiliate shall not holding itself out to be responsible for prohibited from serving as an officer of the Company;
(d) except in accordance with its organizational documents, it will not engage in any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated intercompany transactions with the Originator); Sellers, the Parent or any Affiliate thereof, except as provided in the Sale Agreements, the Servicing Agreement or this Indenture;
(ive) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability it will maintain company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account separate and minutesdistinct from the Sellers' and the Parent's corporate records and the records of any Affiliate thereof and maintain corporate formalities and separate business offices and telephone number;
(f) the financial statements of Sun Funding, Inc., Terra Loans Corp. and the Company will disclose that the assets of the Company are not available to pay creditors of Sun Funding, Inc., Terra Loans Corp. or any Affiliate thereof and will reflect the separate corporate existence of the Company;
(g) it will not act as agent for the Sellers, the Parent or any Affiliate thereof and agrees that it will not authorize the Sellers, the Parent or any Affiliate thereof to act as its agent, except in Sunterra Financial Services, Inc.'s capacity as Servicer under the Servicing Agreement;
(h) its managing member shall maintain at least one Independent Director as required in the managing member's certificate of incorporation;
(i) it will maintain its assets separate and distinct from the Sellers' assets, the Parent's assets and the assets of any Affiliate thereof, and shall not permit its assets to be commingled with those of the Sellers, the Parent or any Affiliate thereof;
(j) it shall not become contractually liable for the payment of any liability of the Sellers or the Parent; and and
(vik) it will not acting in any manner that could foreseeably materially mislead others modify or amend its operating agreement with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable purpose or purposes for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentswhich it is organized.
Appears in 1 contract
Samples: Indenture (Sunterra Corp)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) not holding the Depositor out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any decisions Borrower is a limited liability company whose activities are restricted in its formation documents or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectivelyas applicable, are duly to those activities expressly permitted hereunder and validly taken; (v) keeping correct under the other Related Documents and complete records the Borrower has not engaged, and books of account and minutes; and (vi) does not acting presently engage, in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (business or other activity other than certain indemnification obligations of those activities expressly permitted hereunder and under the Depositor provided herein);
(C) other Related Documents, nor has the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to Borrower entered into any commingled Collections to the extent permitted under agreement other than this Agreement, the Sale other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent and Servicing Agreement the Requisite Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or the Indenture)thereof;
(Dii) the Originator Borrower has duly appointed a board of directors and its business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall at be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) Borrower shall compensate all times limit consultants and agents directly or indirectly through reimbursement of the Parent, from its transactions own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; andterms of the Administrative Services Agreement;
(Eiv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall comply with (and cause to be true and correct) each terms of the facts Administrative Services Agreement from its own funds, and assumptions relating to shall allocate all other shared overhead expenses (including telephone and other utility charges, the Originator contained services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes limited liability company formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower, (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group and (C) the Borrower shall prepare and maintain its own separate financial statements and shall provide copies of such financial statements to any Lender upon reasonable request by such Lender;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent managers (each, an “Independent Manager”), each of whom: (i) shall not have been at the time of his or her appointment or at any time during the preceding five years, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): TD SYNNEX Corporation, any Originator, or any of their respective subsidiaries or affiliates (other than the Borrower), (B) a supplier to any of the Independent Parties, (C) an entity controlling or under common control with any partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any director, officer, employee, associate, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (ii) has prior experience as an independent manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent managers 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, state or provincial law relating to bankruptcy and (iii) has at least three (3) 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. The Borrower shall give the Lenders notice, in writing, not less than ten (10) days prior to the effective date of any decision to appoint a new director of the Borrower as an “Independent Manager”, and shall certify to the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Manager”;
(xiv) the limited liability company agreement or certificate of formation of the Borrower require the affirmative vote of each independent manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital;
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinions delivered by Pillsbury Winthrop Shaw Pittman and Cleary, Gotttlieb, Steen & Hamilton LLP, with respect to true sale and non-substantive consolidation matters; and
(xxi) Parent and Borrower shall strictly observe limited liability company formalities in making and documenting any capital contributions (including of Contributed Receivables) from Parent to Borrower.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not holding the Depositor out to third parties as engaged, and does not presently engage, in any business or other activity other than an entity those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with assets and liabilities distinct from the Originator prior written consent of the Administrative Agent and the Originator’s Requisite Lenders, any other Subsidiaries; agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) other than the Borrower has duly appointed a board of directors and its business is managed solely by reason its own officers and directors, each of owning whom when acting for the membership interest Borrower shall be acting solely in his or her capacity as an officer or director of the DepositorBorrower and not as an officer, not holding itself out to be responsible for director, employee or agent of any decisions or actions relating to member of the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator Borrower shall maintain corporate records compensate all consultants and books of account and corporate minutes separate from those agents directly or indirectly through reimbursement of the DepositorParent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(Biv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall maintain an arm’s-length relationship with terms of the Depositor Administrative Services Agreement from its own funds, and shall not hold itself out as being liable for any Indebtedness of the Depositor allocate all other shared overhead expenses (including telephone and other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreementutility charges, the Sale services of shared consultants and Servicing Agreement or the Indenture);
(Dagents, and reasonable legal and auditing expenses) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower, (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group and (C) the Borrower shall prepare and maintain its own separate financial statements and shall provide copies of such financial statements to any Lender upon reasonable request by such Lender;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: (i) shall not have been at the time of his or her appointment or at any time during the preceding five years, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): TD SYNNEX Corporation, any Originator, or any of their respective subsidiaries or affiliates (other than the Borrower), (B) a supplier to any of the Independent Parties, (C) an entity controlling or under common control with any partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any director, officer, employee, associate, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (ii) has 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, state or provincial law relating to bankruptcy and (iii) has at least three (3) 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. The Borrower shall give the Lenders notice, in writing, not less than ten (10) days prior to the effective date of any decision to appoint a new director of the Borrower as an “Independent Director”, and shall certify to the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital;
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinion delivered by Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxxx LLP with respect to true sale and non-substantive consolidation matters; and
(xxi) Parent and Borrower shall strictly observe corporate formalities in making and documenting any capital contributions (including of Contributed Receivables) from Parent to Borrower.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not holding the Depositor out to third parties as engaged, and does not presently engage, in any business or other activity other than an entity those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with assets and liabilities distinct from the Originator prior written consent of the Administrative Agent and the Originator’s Requisite Lenders, any other Subsidiaries; agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) other than the Borrower has duly appointed a board of directors and its business is managed solely by reason its own officers and directors, each of owning whom when acting for the membership interest Borrower shall be acting solely in his or her capacity as an officer or director of the DepositorBorrower and not as an officer, not holding itself out to be responsible for director, employee or agent of any decisions or actions relating to member of the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator Borrower shall maintain corporate records compensate all consultants and books of account and corporate minutes separate from those agents directly or indirectly through reimbursement of the DepositorParent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(Biv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall maintain an arm’s-length relationship with terms of the Depositor Administrative Services Agreement from its own funds, and shall not hold itself out as being liable for any Indebtedness of the Depositor allocate all other shared overhead expenses (including telephone and other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreementutility charges, the Sale services of shared consultants and Servicing Agreement or the Indenture);
(Dagents, and reasonable legal and auditing expenses) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent directors each of whom (i) is not a stockholder (whether direct, indirect or beneficial), customer or supplier of Synnex Corporation or any of its affiliates; (ii) is not a director, officer, employee, affiliate or associate of Synnex Corporation or any of its affiliates (other than the Borrower); (iii) is not a person related to any person referred to in clauses (i) or (ii); (iv) is not a trustee, conservator or receiver for any affiliates of Synnex Corporation; and (v) has reasonable experience adequate to qualify as an independent director for a corporation whose charter documents require 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;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital; and
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinion delivered by Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP with respect to true sale and non-substantive consolidation matters.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Synnex Corp)
Nonconsolidation. The Originator has taken and will continue to Seller shall take all actions required to maintain in all material respects the DepositorBuyer’s status as a separate legal entity, including, without limitation, including (i) not holding the Depositor Buyer out to third parties as an entity other than an entity with assets and liabilities distinct from the Originator Seller and the OriginatorSeller’s other Subsidiariessubsidiaries; provided that the assets of the Buyer may be consolidated into the assets of the Seller for tax and accounting purposes and may be included in the publicly-filed financial statements of the Seller; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any indebtedness or other liability of the Buyer or, other than by reason of owning equity interests of the Buyer, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)Buyer; (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the DepositorBuyer’s certificate of formation and limited liability company agreement, respectively, respective Constituent Documents are duly and validly taken; (viv) keeping correct and complete records and books of account and minutes; and (viv) not acting in any manner that could foreseeably materially mislead others with respect to the DepositorBuyer’s separate identity. In addition to the foregoing, the Originator has taken and will continue to Seller shall take all necessary actions so thatthe following actions:
(Ai) the Originator The Seller shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;Buyer.
(Bii) the Originator The Seller shall maintain an arm’s-length relationship with the Depositor Buyer and shall not hold itself out as being liable for any Indebtedness indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);Buyer.
(Ciii) the Originator The Seller shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to Buyer; provided that the extent permitted under this Agreement, assets of the Sale Buyer may be consolidated into the assets of the Seller for tax and Servicing Agreement or the Indenture);accounting purposes.
(Div) the Originator The Seller shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder take or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) refrain from taking, as applicable, each of the facts and assumptions relating to the Originator contained activities specified or assumed in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to Non-Consolidation/True Sale Opinion, upon which the terms of the Transaction Documentsconclusions expressed therein are based.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Main Street Capital CORP)
Nonconsolidation. The Originator has taken and will continue to Seller shall take all actions required to maintain the Depositor’s Buyer's status as a separate legal entity, including, without limitation, (i) not holding the Depositor Buyer out to third parties as an entity other than an entity with assets and liabilities distinct from the Originator Seller and the Originator’s Seller's other Subsidiariessubsidiaries; provided that the assets of the Buyer may be consolidated into the assets of the Seller for tax and accounting purposes and may be included in the publicly-filed financial statements of the Seller; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any indebtedness or other liability of the Buyer or, other than by reason of owning equity interests of the Buyer, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)Buyer; (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, Buyer's respective constituent documents are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s Buyer's separate identity. In addition to the foregoing, the Originator has taken and will continue to Seller shall take all necessary actions so thatthe following actions:
(Ai) the Originator The Seller shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;Buyer.
(Bii) the Originator The Seller shall maintain an arm’sarm's-length relationship with the Depositor Buyer and shall not hold itself out as being liable for any Indebtedness indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);Buyer.
(Ciii) the Originator The Seller shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to Buyer; provided that the extent permitted under this Agreement, assets of the Sale Buyer may be consolidated into the assets of the Seller for tax and Servicing Agreement or the Indenture);accounting purposes.
(Div) the Originator The Seller shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder take or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) refrain from taking, as applicable, each of the facts and assumptions relating to the Originator contained activities specified or assumed in the non-consolidation opinion of Xxxxxx Xxxxxx Xxxxxxxx Dechert LLP delivered pursuant to on the terms of Closing Date, upon which the Transaction Documentsconclusions expressed therein are based.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (PennantPark Floating Rate Capital Ltd.)
Nonconsolidation. The Originator has taken Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and will continue to take all actions required to maintain any member of the Depositor’s status as a separate legal entityParent Group, includingon the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limitation, limiting the generality of the foregoing:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not holding the Depositor out to third parties as engaged, and does not presently engage, in any business or other activity other than an entity those activities expressly permitted hereunder and under the other Related Documents, nor has the 744861979 10435078 Borrower entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with assets and liabilities distinct from the Originator prior written consent of the Administrative Agent and the Originator’s Requisite Lenders, any other Subsidiaries; agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) other than the Borrower has duly appointed a board of directors and its business is managed solely by reason its own officers and directors, each of owning whom when acting for the membership interest Borrower shall be acting solely in his or her capacity as an officer or director of the DepositorBorrower and not as an officer, not holding itself out to be responsible for director, employee or agent of any decisions or actions relating to member of the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:Parent Group;
(A) the Originator Borrower shall maintain corporate records compensate all consultants and books of account and corporate minutes separate from those agents directly or indirectly through reimbursement of the DepositorParent, from its own funds, for services provided to the Borrower by such consultants and agents and, to the extent any consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a basis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and (B) Borrower shall not have any employees;
(Biv) Borrower shall pay its own incidental administrative costs and expenses not covered under the Originator shall maintain an arm’s-length relationship with terms of the Depositor Administrative Services Agreement from its own funds, and shall not hold itself out as being liable for any Indebtedness of the Depositor allocate all other shared overhead expenses (including telephone and other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreementutility charges, the Sale services of shared consultants and Servicing Agreement or the Indenture);
(Dagents, and reasonable legal and auditing expenses) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained which are not reflected in the opinion Servicing Fee, and other items of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Parent, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group 744861979 10435078 reflect the separate existence of the Borrower, (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group and (C) the Borrower shall prepare and maintain its own separate financial statements and shall provide copies of such financial statements to any Lender upon reasonable request by such Lender;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Parent;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: (i) shall not have been at the time of his or her appointment or at any time during the preceding five years, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): TD SYNNEX Corporation, any Originator, or any of their respective subsidiaries or affiliates (other than the Borrower), (B) a supplier to any of the Independent Parties, (C) an entity controlling or under common control with any partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties, or (D) a member of the immediate family of any director, officer, employee, associate, partner, shareholder, member, manager, affiliate or supplier of any of the Independent Parties; (ii) has prior experience as an independent director for a corporation whose charter 744861979 10435078 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, state or provincial law relating to bankruptcy and (iii) has at least three (3) 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. The Borrower shall give the Lenders notice, in writing, not less than ten (10) days prior to the effective date of any decision to appoint a new director of the Borrower as an “Independent Director”, and shall certify to the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;
(xiv) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
(xv) Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders and board of directors;
(xvi) Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) Borrower shall correct any known misunderstanding regarding its separate identity;
(xix) Borrower shall maintain adequate capital;
(xx) Borrower shall comply with each of the assumptions set forth in that certain legal opinion delivered by Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP with respect to true sale and non-substantive consolidation matters; and
(xxi) Parent and Borrower shall strictly observe corporate formalities in making and documenting any capital contributions (including of Contributed Receivables) from Parent to Borrower.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Td Synnex Corp)
Nonconsolidation. The Each Originator has taken and will continue to shall take all actions required to maintain the DepositorSPV’s status as a separate legal entity, including, without limitation, including (i) not holding the Depositor SPV out to third parties as other than an entity with assets and liabilities distinct from the such Originator and the such Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any Indebtedness of the SPV or, other than by reason of owning membership interests of the SPV, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)SPV; (iii) preparing unaudited having separate financial statements for the Depositor (SPV, which may be consolidated with under the Originator)financial statements of Xxxxx, Inc.; (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 DepositorSPV’s certificate of formation and limited liability company agreement, respectively, 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 materially mislead others with respect to the DepositorSPV’s separate identity. In addition to the foregoing, each Originator shall take the Originator has taken and will continue to take all necessary actions so thatfollowing actions:
(A) the Originator shall maintain corporate company records and books of account and corporate minutes separate from those of the DepositorSPV;
(B) continuously maintain as official records the Originator shall resolutions, agreements and other instruments underlying the transactions described in this Agreement;
(C) maintain an arm’s-length relationship with the Depositor SPV and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein)SPV;
(CD) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture)SPV;
(DE) not mislead third parties by conducting or appearing to conduct business on behalf of the SPV or expressly or impliedly representing or suggesting that such Originator shall is liable or responsible for any Indebtedness of the SPV or that the assets of such Originator are available to pay the creditors of the SPV;
(F) at all times have stationery and other business forms and a mailing address and telephone number separate from those of the SPV;
(G) at all times limit its transactions with the Depositor SPV only to those expressly permitted hereunder or under any other Transaction Document; and
(EH) the Originator shall comply in all material respects with (and cause to be true and correctcorrect in all material respects) each of the facts and assumptions relating to the Originator it contained in the opinion opinion(s) of Xxxxxx Xxxxxx Xxxxxxxx LLP Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, delivered pursuant to the terms Section 5.1(m) of the Transaction DocumentsSecond Tier Agreement.
Appears in 1 contract
Samples: Sale Agreement (Greif Inc)
Nonconsolidation. The Originator Seller is operated in such a manner that the separate corporate existence of the Seller, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Seller is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Seller has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Seller entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Purchaser Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Seller has duly appointed a board of managers and its business is managed solely by its own officers and managers, each of whom when acting for the Seller shall be acting solely in his or her capacity as an officer or manager of the Seller and not as an officer, manager, employee or agent of any member of the Parent Group;
(A) Seller shall compensate all actions required employees (if any), consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Seller by such employees (if any), consultants and agents and, to the extent any employee (if any), consultant or agent of the Seller is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Seller and such member of the Parent Group and (B) Seller shall not have any employees;
(iv) Seller shall pay its own incidental administrative costs and expenses from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Seller and the OriginatorServicer, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller’s other Subsidiaries; organizational documents, no member of the Parent Group (iiA) pays the Seller’s expenses, (B) guarantees the Seller’s obligations, or (C) advances funds to the Seller for the payment of expenses or otherwise;
(v) other than by reason the purchase and acceptance through capital contribution of owning Transferred Receivables pursuant to the membership interest Transfer Agreement, the payment of distributions and the return of capital to its members, the payment of Servicing Fees to the Servicer under the Transfer Agreement, the Seller engages and has engaged in no intercorporate transactions with any member of the Depositor, not holding itself out to be responsible for any decisions or actions relating to Parent Group;
(vi) the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete Seller maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of managers and minutes; otherwise observes corporate formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Seller and each member of the Parent Group reflect the separate existence of the Seller and (viB) not acting in any manner that could foreseeably materially mislead others with respect the consolidated financial statements of the Parent Group shall contain disclosure to the Depositoreffect that the Seller’s separate identity. In addition assets are not available to the foregoing, creditors of any member of the Originator has taken and will continue to take all necessary actions so that:Parent Group
(A) the Originator shall maintain corporate records and books Seller maintains its assets separately from the assets of account and corporate minutes separate from those each member of the Depositor;
Parent Group (including through the maintenance of separate bank accounts and except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), (B) the Originator shall maintain an arm’s-length relationship Seller’s funds (including all money, checks and other cash proceeds) and assets, and records relating thereto, have not been and are not commingled with the Depositor and shall not hold itself out as being liable for those of any Indebtedness member of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
Parent Group and (C) the Originator shall keep its assets and its liabilities wholly separate from those creditors of the Depositor Seller will be entitled, on the winding-up of the Seller, to be satisfied out of the Seller’s assets prior to any value in the Seller becoming available to the Member;
(except ix) all business correspondence and other communications of the Seller are conducted in the Seller’s own name;
(x) the Seller shall respond to any inquiries with respect to any commingled Collections ownership of a Transferred Receivable by stating that such Transferred Receivable has been sold, and assigned to the extent permitted under this Agreement, Purchaser Agent for the Sale and Servicing Agreement or benefit of the Indenture)Purchasers;
(Dxi) the Originator shall Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xii) the Seller maintains at least one independent manager who (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 or any Transferor), all times limit as provided in its transactions with certificate of incorporation, (B) has (1) prior experience as an independent manager for an entity whose organizational documents required the Depositor only unanimous consent of all independent managers thereof before such corporation could consent to those expressly permitted hereunder 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, independent manager services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Purchaser Agent, and the retention arrangement with such independent managers requires them to consider the interest of Seller;
(xiii) the limited liability company agreement of the Seller requires the affirmative vote of each independent manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Seller;
(xiv) Seller shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other Transaction Documentproceedings of its members and board of managers;
(xv) Seller shall not hold out its credit as being available to satisfy obligations of others;
(xvi) Seller shall not acquire obligations or Stock of any member of the Parent Group;
(xvii) Seller shall correct any known misunderstanding regarding its separate identity; and
(Exviii) the Originator Seller shall comply with (and cause to be true and correct) each maintain adequate capital in light of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentsits contemplated business operations.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Holdings, Inc.)
Nonconsolidation. The Originator Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has taken not engaged, and will continue does not presently engage, in any activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Administrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower’s business is managed solely by its own officers and directors, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or director of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) Borrower shall compensate all actions required employees, consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Borrower by such employees, consultants and agents and, to the extent any employee, consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement;
(iv) Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Borrower and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the DepositorParent, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables, the acceptance of Subordinated Loans pursuant to the Subordinated Notes, the payment of distributions and the return of capital to the Members, the incurrence of indebtedness under the L/C Note, the payment of Servicing Fees to the Servicer under this Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes limited liability company formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement the Borrower’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 separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Members;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Lenders;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least one independent director who (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 Borrower), all as provided in its limited liability company agreement, (B) has (1) prior experience as an independent director for an entity whose organizational 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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Administrative Agent; and
(xiv) the limited liability company agreement of the Borrower requires (A) the affirmative vote of each independent director before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower, and (B) the Borrower to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of directors.
Appears in 1 contract
Samples: Receivables Funding Agreement (Ak Steel Holding Corp)
Nonconsolidation. The Originator has taken Issuers agree that so long as any Notes are Outstanding, it will be operated such that it will not be substantively consolidated in the bankruptcy estate of HPSC or any Affiliate thereof and will continue to take all actions required to maintain not have its separate existence disregarded in the Depositor’s status as event of a separate legal entitybankruptcy of HPSC or any Affiliate thereof. Without limiting the foregoing, includingeach of the Issuers agree that:
(a) it will pay its own expenses, without limitation, (i) HPSC will not holding the Depositor out to third parties as guarantee any of such Issuer's obligations other than an entity with assets pursuant to the Note Purchase Agreement and liabilities distinct from neither HPSC nor any Affiliate thereof will lend funds to such Issuer for the Originator payment of expenses;
(b) it will conduct its business exclusively on its own stationery and the Originator’s other Subsidiaries; all correspondence by such Issuer will be in its own name;
(iic) other than by reason of owning the membership interest of the Depositor, it will not holding itself out permit HPSC or any Affiliate thereof to be responsible for involved in the daily management of such Issuer; PROVIDED, HOWEVER, an officer of HPSC or any decisions Affiliate thereof shall not be prohibited from serving as an officer of such Issuer;
(d) except in accordance with its organizational documents, it will not engage in any intercompany transactions with HPSC or actions relating to any Affiliate thereof, except as provided in the Depositor Receivables Transfer Agreement, the Servicing Agreement or this Indenture;
(except for decisions or actions as a member); (iiie) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability it will maintain company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account separate and minutesdistinct from HPSC's corporate records and the records of any Affiliate thereof and maintain corporate formalities and separate business offices and telephone number;
(f) the financial statements of HPSC, LLC I and LLC II will disclose that the assets of LLC I and LLC II are not available to pay creditors of HPSC or any Affiliate thereof and will reflect the separate corporate existence of LLC I and LLC II;
(g) it will not act as agent for HPSC or any Affiliate thereof and agrees that it will not authorize HPSC or any Affiliate thereof to act as its agent, except in HPSC's capacity as Servicer under the Servicing Agreement;
(h) at least two of its managers shall be Independent Managers as required in its Limited Liability Company Agreement;
(i) it will maintain its assets separate and distinct from HPSC's assets and the assets of any Affiliate thereof, and shall not permit its assets to be commingled with those of HPSC or any Affiliate thereof;
(j) it shall not become contractually liable for the payment of any liability of HPSC; and and
(vik) it will not acting in any manner that could foreseeably materially mislead others modify or amend its operating agreement with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable purpose or purposes for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentswhich it is organized.
Appears in 1 contract
Samples: Indenture (HPSC Inc)
Nonconsolidation. The Originator Seller is operated in such a manner that the separate corporate existence of the Seller, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Seller is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Seller has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Seller entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Purchaser Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Seller has duly appointed a board of managers and its business is managed solely by its own officers and managers, each of whom when acting for the Seller shall be acting solely in his or her capacity as an officer or manager of the Seller and not as an officer, manager, employee or agent of any member of the Parent Group;
(A) Seller shall compensate all actions required employees (if any), consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Seller by such employees (if any), consultants and agents and, to the extent any employee (if any), consultant or agent of the Seller is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Seller and such member of the Parent Group and (B) Seller shall not have any employees;
(iv) Seller shall pay its own incidental administrative costs and expenses from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Seller and the OriginatorServicer, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller’s other Subsidiaries; organizational documents, no member of the Parent Group (iiA) pays the Seller’s expenses, (B) guarantees the Seller’s obligations, or (C) advances funds to the Seller for the payment of expenses or otherwise;
(v) other than by reason the purchase and acceptance through capital contribution of owning Transferred Receivables pursuant to the membership interest Transfer Agreement, the payment of distributions and the return of capital to its members, the payment of Servicing Fees to the Servicer under the Transfer Agreement, the Seller engages and has engaged in no intercorporate transactions with any member of the Depositor, not holding itself out to be responsible for any decisions or actions relating to Parent Group;
(vi) the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete Seller maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of managers and minutes; and otherwise observes corporate formalities;
(vivii) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records financial statements (other than consolidated financial statements) and books of account and corporate minutes separate from those records of the Depositor;
Seller and each member of the Parent Group reflect the separate existence of the Seller and (B) the Originator consolidated financial statements of the Parent Group shall maintain an arm’s-length relationship contain disclosure to the effect that the Seller’s assets are not available to the creditors of any member of the Parent Group
(viii) (A) the Seller 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 Servicer in connection with the Depositor and shall not hold itself out as being liable for any Indebtedness servicing of the Depositor Transferred Receivables), (B) the Seller’s funds (including all money, checks and other than certain indemnification obligations cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Depositor provided herein);
Parent Group and (C) the Originator shall keep its assets and its liabilities wholly separate from those creditors of the Depositor Seller will be entitled, on the winding-up of the Seller, to be satisfied out of the Seller’s assets prior to any value in the Seller becoming available to the Member;
(except ix) all business correspondence and other communications of the Seller are conducted in the Seller’s own name;
(x) the Seller shall respond to any inquiries with respect to any commingled Collections ownership of a Transferred Receivable by stating that such Transferred Receivable has been sold, and assigned to the extent permitted under this Agreement, Purchaser Agent for the Sale and Servicing Agreement or benefit of the Indenture)Purchasers;
(Dxi) the Originator shall Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xii) the Seller maintains at least one independent manager who (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 or any Transferor), all times limit as provided in its transactions with certificate of incorporation, (B) has (1) prior experience as an independent manager for an entity whose organizational documents required the Depositor only unanimous consent of all independent managers thereof before such corporation could consent to those expressly permitted hereunder 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, independent manager services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) is otherwise acceptable to the Purchaser Agent, and the retention arrangement with such independent managers requires them to consider the interest of Seller;
(xiii) the limited liability company agreement of the Seller requires the affirmative vote of each independent manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Seller;
(xiv) Seller shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other Transaction Documentproceedings of its members and board of managers;
(xv) Seller shall not hold out its credit as being available to satisfy obligations of others;
(xvi) Seller shall not acquire obligations or Stock of any member of the Parent Group;
(xvii) Seller shall correct any known misunderstanding regarding its separate identity; and
(Exviii) the Originator Seller shall comply with (and cause to be true and correct) each maintain adequate capital in light of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentsits contemplated business operations.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Univision Communications Inc)
Nonconsolidation. The Originator has taken and will continue to Seller shall take all actions required to maintain the DepositorBuyer’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor Buyer out to third parties as an entity other than an entity with assets and liabilities distinct from the Originator Seller and the OriginatorSeller’s other Subsidiariessubsidiaries; provided that the assets of the Buyer may be consolidated into the assets of the Seller or Gxxxxxxx BDC for tax and accounting purposes and may be included in the publicly-filed financial statements of the Seller or Gxxxxxxx BDC; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any indebtedness or other liability of the Buyer or, other than by reason of owning equity interests of the Buyer, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)Buyer; (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all limited liability company procedures required by its and the DepositorBuyer’s certificate of formation and limited liability company agreement, respectively, respective constituent documents are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the DepositorBuyer’s separate identity. In addition to the foregoing, the Originator has taken and will continue to Seller shall take all necessary actions so thatthe following actions:
(Ai) the Originator The Seller shall maintain corporate limited liability company records and books of account and corporate minutes separate from those of the Depositor;Buyer.
(Bii) the Originator The Seller shall maintain an arm’s-length relationship with the Depositor Buyer and shall not hold itself out as being liable for any Indebtedness indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);Buyer.
(Ciii) the Originator The Seller shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to Buyer; provided that the extent permitted under this Agreement, assets of the Sale Buyer may be consolidated into the assets of the Seller for tax and Servicing Agreement or the Indenture);accounting purposes.
(Div) the Originator The Seller shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder take or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) refrain from taking, as applicable, each of the facts and assumptions relating to the Originator contained activities specified or assumed in the opinion true sale and non-consolidation opinions of Xxxxxx Xxxxxx Xxxxxxxx Dechert LLP delivered pursuant to on the terms of Closing Date, upon which the Transaction Documentsconclusions expressed therein are based.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (Garrison Capital LLC)
Nonconsolidation. The Originator has taken Issuers agree that so long as any Notes are Outstanding, it will be operated such that it will not be substantively consolidated in the bankruptcy estate of HPSC or any Affiliate thereof and will continue to take all actions required to maintain not have its separate existence disregarded in the Depositor’s status as event of a separate legal entitybankruptcy of HPSC or any Affiliate thereof. Without limiting the foregoing, includingeach of the Issuers agree that:
(a) it will pay its own expenses, without limitation, (i) not holding the Depositor out to third parties as neither HPSC nor ACFC will guarantee any of such Issuer's obligations other than an entity with assets pursuant to the Note Purchase Agreement and liabilities distinct from neither HPSC, ACFC, nor any Affiliate thereof will lend funds to such Issuer for the Originator payment of expenses;
(b) it will conduct its business exclusively on its own stationery and the Originator’s other Subsidiaries; all correspondence by such Issuer will be in its own name;
(iic) other than by reason of owning the membership interest of the Depositorit will not permit HPSC, not holding itself out ACFC or any Affiliate thereof to be responsible for involved in the daily management of such Issuer; provided, however, an officer of HPSC or any decisions Affiliate thereof shall not be prohibited from serving as an officer of such Issuer;
(d) except in accordance with its organizational documents, it will not engage in any intercompany transactions with HPSC, ACFC or actions relating to any Affiliate thereof, except as provided in the Depositor Receivables Transfer Agreement, the Servicing Agreement or this Indenture;
(except for decisions or actions as a member); (iiie) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability it will maintain company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account separate and minutesdistinct from HPSC's and ACFC's corporate records and the records of any Affiliate thereof and maintain corporate formalities and separate business offices and telephone number;
(f) the financial statements HPSC, ACFC, LLCI and LLCII will disclose that the assets of LLCI and LLCII are not available to pay creditors of HPSC, ACFC or any Affiliate thereof and will reflect the separate corporate existence of LLCI and LLCII;
(g) it will not act as agent for HPSC, ACFC or any Affiliate thereof and agrees that it will not authorize HPSC, ACFC or any Affiliate thereof to act as its agent, except in HPSC's capacity as Servicer under the Servicing Agreement;
(h) at least two of its managers shall be Independent Managers as required in its Limited Liability Company Agreement;
(i) it will maintain its assets separate and distinct from HPSC's assets, ACFC's assets and the assets of any Affiliate thereof, and shall not permit its assets to be commingled with those of HPSC, ACFC or any Affiliate thereof;
(j) it shall not become contractually liable for the payment of any liability of HPSC and ACFC; and and
(vik) it will not acting in any manner that could foreseeably materially mislead others modify or amend its operating agreement with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable purpose or purposes for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentswhich it is organized.
Appears in 1 contract
Samples: Indenture (HPSC Inc)
Nonconsolidation. The Originator has taken Issuer agrees that it will be operated such that it will not be substantively consolidated in the bankruptcy estate of Cakewalk LLC and will continue not have its separate existence disregarded in the event of a bankruptcy of Cakewalk LLC. Without limiting the foregoing:
(a) The Issuer agrees that it will pay its own expenses, it will not accept a guarantee by Cakewalk LLC of all of the Issuer's obligations and liabilities, and it will not borrow funds from Cakewalk LLC for the payment of expenses;
(b) The Issuer agrees that it will conduct its business exclusively on its own stationary and issue all of its correspondence in its own name;
(c) Except as set forth in the Management Agreement, the Issuer will not permit Cakewalk LLC to take all actions required to maintain be involved in the Depositor’s status as a separate legal entitydaily management of the Issuer;
(d) The Issuer will not engage in any transactions with Cakewalk LLC, including, without limitation, (i) not holding the Depositor out to third parties as other than except on an entity with assets and liabilities distinct from the Originator arms length basis; and the Originator’s other Subsidiaries; Issuer hereby represents that the Management Agreement provides for a reasonable arm's length management fee;
(iie) other than by reason of owning the membership interest of the Depositor, not holding itself out The Issuer agrees to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its establish and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete maintain records and books of account separate and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate distinct from Cakewalk LLC's records and books of account thereof, and corporate minutes separate from those to share business offices and telephone numbers with that of Cakewalk LLC, but to pay the Depositorallocable costs thereof as set forth in the Management Agreement;
(Bf) The Issuer agrees to keep its financial statements so as to disclose that its assets are not available to pay creditors of Cakewalk LLC and to reflect its separate existence;
(g) The Issuer will not either (i) act as an agent for Cakewalk LLC or (ii) authorize Cakewalk LLC to act as its agent;
(h) The Issuer will maintain at least two Independent (as such term is defined in the Originator shall Issuer's Operating Agreement) Managers so long as any Note remains Outstanding;
(i) The Issuer agrees to maintain an arm’s-length relationship with the Depositor its assets separate and distinct from Cakewalk LLC's assets and shall not hold itself out as being liable for any Indebtedness permit its assets to be commingled with those of the Depositor (other than certain indemnification obligations of the Depositor provided herein)Cakewalk LLC;
(Cj) The Issuer shall not become contractually liable for the Originator shall keep its assets and its liabilities wholly separate from those payment of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Documentliability of Cakewalk LLC; and
(Ek) the Originator The Issuer shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentsobserve all limited liability company formalities.
Appears in 1 contract
Samples: Indenture (Cdbeat Com Inc)
Nonconsolidation. The Borrower will operate in such a manner that the separate limited liability company existence of the Borrower and each Originator has taken Entity and will continue to take all actions required to maintain Affiliate thereof would not be disregarded in the Depositor’s status as a separate legal entity, includingevent of the bankruptcy or insolvency of any Originator Entity and Affiliate thereof and, without limitation, limiting the generality of the foregoing:
(i) the Borrower will not holding the Depositor out to third parties as engage in any activity other than an entity with assets and liabilities distinct from those activities expressly permitted under the Originator Borrower's organizational documents and the Originator’s Transaction Documents, nor will the Borrower enter into any agreement other Subsidiaries; than this Agreement, the other Transaction Documents to which it is a party and, with the prior written consent of the Agent, any other agreement necessary to carryout more effectively the provisions and purposes hereof or thereof;
(ii) other than by reason the Borrower will maintain a business office separate from that of owning the membership interest each of the Depositor, not holding itself out to be responsible for any decisions or actions relating to Borrower Entities and the Depositor Affiliates thereof (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which it being understood that such office may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate located within any office space of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided hereinEntity);
(Ciii) the Originator shall keep its assets Borrower will cause the financial statements and its liabilities wholly separate from those books and records of the Depositor (except with respect to any commingled Collections to the extent permitted under this AgreementBorrower, the Sale and Servicing Agreement or Originators to reflect the Indenture)separate corporate existence of the Borrower;
(Div) the Originator shall at all times limit its transactions with the Depositor only to those except as otherwise expressly permitted hereunder or hereunder, under any the other Transaction DocumentDocuments and under the Borrower's organizational documents, the Borrower will not permit any Originator Entity or Affiliate thereof to (A) pay the Borrower's expenses, (B) guarantee the Borrower's obligations, or (C) advance funds to the Borrower for the payment of expenses or otherwise; and
(Ev) the Borrower will not act as agent for any Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating Entity or Affiliate, but instead will present itself to the Originator contained public as a limited liability company separate from each such Person and independently engaged in the opinion business of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documentspurchasing and financing Receivables.
Appears in 1 contract
Nonconsolidation. The Originator Such Transferor is operated in such a manner that the separate corporate existence of such Transferor, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) such Transferor is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and such Transferor has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has such Transferor entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Purchaser Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) such Transferor has duly appointed a board of managers and its business is managed solely by its own officers and managers, each of whom when acting for such Transferor shall be acting solely in his or her capacity as an officer or manager of such Transferor and not as an officer, manager, employee or agent of any member of the Parent Group;
(iii) (A) such Transferor shall compensate all actions required employees (if any), consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain such Transferor by such employees (if any), consultants and agents and, to the Depositor’s status as extent any employee (if any), consultant or agent of such Transferor is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to such Transferor and such member of the Parent Group and (B) such Transferor shall not have any employees;
(iv) such Transferor shall pay its own incidental administrative costs and expenses from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses), and other items of cost and expense shared between such Transferor and any member of the Parent Group, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under such Transferor’s organizational documents, no member of the Parent Group (iA) not holding pays such Transferor’s expenses, (B) guarantees such Transferor’s obligations, or (C) advances funds to such Transferor for the Depositor out to third parties as other than an entity with assets and liabilities distinct from the Originator and the Originator’s other Subsidiaries; payment of expenses or otherwise;
(iiv) other than by reason the purchase and acceptance through capital contribution of owning Transferred Receivables pursuant to this Agreement, the membership interest payment of distributions and the return of capital to its members, such Transferor engages and has engaged in no intercorporate transactions with any member of the Depositor, not holding itself out to be responsible for any decisions or actions relating to the Depositor Parent Group;
(except for decisions or actions as a member); (iiivi) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete Transferor maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of managers and minutes; and otherwise observes corporate formalities;
(vivii) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records financial statements (other than consolidated financial statements) and books and records of account such Transferor and corporate minutes separate from those each member of the Depositor;
Parent Group reflect the separate existence of such Transferor and (B) the Originator consolidated financial statements of the Parent Group shall maintain an arm’s-length relationship contain disclosure to the effect that such Transferor’s assets are not available to the creditors of any member of the Parent Group;
(viii) (A) such Transferor 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 Servicer in connection with the Depositor and shall not hold itself out as being liable for any Indebtedness servicing of the Depositor Transferred Receivables), (B) such Transferor’s funds (including all money, checks and other than certain indemnification obligations cash proceeds) and assets, and records relating thereto, have not been and are not commingled with those of any member of the Depositor provided herein);
Parent Group and (C) the Originator separate creditors of such Transferor will be entitled, on the winding-up of such Transferor, to be satisfied out of such Transferor’s assets prior to any value in such Transferor becoming available to the Member;
(ix) all business correspondence and other communications of such Transferor are conducted in such Transferor’s own name;
(x) such Transferor shall keep its assets and its liabilities wholly separate from those of the Depositor (except respond to any inquiries with respect to any commingled Collections ownership of a Transferred Receivable by stating that such Transferred Receivable has been sold, and assigned to the extent permitted under this Agreement, Purchaser Agent for the Sale and Servicing Agreement or benefit of the Indenture)Purchasers;
(Dxi) such Transferor does not act as agent for any member of the Originator shall at all times limit its transactions with Parent Group, but instead presents itself to the Depositor only to those expressly permitted hereunder or under any other Transaction Document; andpublic as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(Exii) the Originator shall comply with such Transferor maintains at least one independent manager who (and cause to be true and correctA) each is not a Stockholder, director, officer, employee or associate, or any relative of the facts and assumptions relating foregoing, of any member of the Parent Group (other than the Buyer or any Transferor), all as provided in its certificate of incorporation, (B) has (1) prior experience as an independent manager for an entity whose organizational documents required the unanimous consent of all independent managers thereof before such corporation could consent to the Originator contained in the opinion institution of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction Documents.bankruptcy or insolvency proceedings against it or could file
Appears in 1 contract
Samples: Receivables Transfer and Servicing Agreement (Univision Holdings, Inc.)
Nonconsolidation. The Originator has taken and will continue to Seller shall take all actions required to maintain the DepositorBuyer’s status as a separate legal entity, including, without limitation, (i) not holding the Depositor Buyer out to third parties as an entity other than an entity with assets and liabilities distinct from the Originator Seller and the OriginatorSeller’s other Subsidiariessubsidiaries; provided that the assets of the Buyer may be consolidated into the assets of the Seller for tax and accounting purposes and may be included in the publicly-filed financial statements of the Seller; (ii) other than by reason of owning the membership interest of the Depositor, not holding itself out to be responsible for any indebtedness or other liability of the Buyer or, other than by reason of owning equity interests of the Buyer, for any decisions or actions relating to the Depositor (except for decisions or actions as a member)Buyer; (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all corporate procedures required by its and the DepositorBuyer’s certificate of formation and limited liability company agreement, respectively, respective constituent documents are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the DepositorBuyer’s separate identity. In addition to the foregoing, the Originator has taken and will continue to Seller shall take all necessary actions so thatthe following actions:
(Ai) the Originator The Seller shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;Buyer.
(Bii) the Originator The Seller shall maintain an arm’s-length relationship with the Depositor Buyer and shall not hold itself out as being liable for any Indebtedness indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);Buyer.
(Ciii) the Originator The Seller shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to Buyer; provided that the extent permitted under this Agreement, assets of the Sale Buyer may be consolidated into the assets of the Seller for tax and Servicing Agreement or the Indenture);accounting purposes.
(Div) the Originator The Seller shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder take or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) refrain from taking, as applicable, each of the facts and assumptions relating to the Originator contained activities specified or assumed in the non-consolidation opinion of Xxxxxx Xxxxxx Xxxxxxxx Dechert LLP delivered pursuant to on the terms of Closing Date, upon which the Transaction Documentsconclusions expressed therein are based.
Appears in 1 contract
Samples: Purchase and Contribution Agreement (PennantPark Floating Rate Capital Ltd.)
Nonconsolidation. The Originator Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, and any member of the Parent Group, on the other hand, would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Group and, without limiting the generality of the foregoing:
(i) the Borrower is a limited purpose limited liability company whose activities are restricted in its limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has taken not engaged, and will continue does not presently engage, in any business or other activity other than those activities expressly permitted hereunder and under the other Related Documents, nor has the Borrower entered into any agreement other than this Agreement, the other Related Documents to take which it is a party and, with the prior written consent of the Requisite Lenders, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) the Borrower has duly appointed a board of managers and its business is managed solely by its own officers and managers, each of whom when acting for the Borrower shall be acting solely in his or her capacity as an officer or manager of the Borrower and not as an officer, director, employee or agent of any member of the Parent Group;
(iii) the Borrower shall compensate all actions required employees (if any), consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to maintain the Depositor’s status as Borrower by such employees (if any), consultants and agents and, to the extent any employee (if any), consultant or agent of the Borrower is also an employee, consultant or agent of such member of the Parent Group on a separate legal entitybasis which reflects the respective services rendered to the Borrower and such member of the Parent Group and in accordance with the terms of the Administrative Services Agreement and the Borrower shall not have any employees;
(iv) the Borrower shall pay its own incidental administrative costs and expenses not covered under the terms of the Administrative Services Agreement from its own funds, and shall allocate all other shared overhead expenses (including, without limitation, (itelephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not holding reflected in the Depositor out to third parties as Servicing Fee, and other than an entity with assets items of cost and liabilities distinct from expense shared between the Originator Borrower and the Originator’s other Subsidiaries; (ii) other than by reason of owning the membership interest of the DepositorParent, not holding itself out to be responsible for any decisions or actions relating to the Depositor (except for decisions or actions as a member); (iii) preparing unaudited separate financial statements for the Depositor (which may be consolidated with the Originator); (iv) taking such other actions as are necessary on its part to ensure that all procedures required by its and the Depositor’s certificate of formation and limited liability company agreement, respectively, are duly and validly taken; (v) keeping correct and complete records and books of account and minutes; and (vi) not acting in any manner that could foreseeably materially mislead others with respect to the Depositor’s separate identity. In addition to the foregoing, the Originator has taken and will continue to take all necessary actions so that:
(A) the Originator shall maintain corporate records and books of account and corporate minutes separate from those of the Depositor;
(B) the Originator shall maintain an arm’s-length relationship with the Depositor and shall not hold itself out as being liable for any Indebtedness of the Depositor (other than certain indemnification obligations of the Depositor provided herein);
(C) the Originator shall keep its assets and its liabilities wholly separate from those of the Depositor (except with respect to any commingled Collections to the extent permitted under this Agreement, the Sale and Servicing Agreement or the Indenture);
(D) the Originator shall at all times limit its transactions with the Depositor only to those expressly permitted hereunder or under any other Transaction Document; and
(E) the Originator shall comply with (and cause to be true and correct) each of the facts and assumptions relating to the Originator contained in the opinion of Xxxxxx Xxxxxx Xxxxxxxx LLP delivered pursuant to the terms of the Transaction DocumentsAdministrative Services Agreement, on the basis of actual use to the extent practicable and, to the extent such allocation is not practicable, on a basis reasonably related to actual use or the value of services rendered; except as otherwise expressly permitted hereunder, under the other Related Documents and under the Borrower’s organizational documents, no member of the Parent Group (A) pays the Borrower’s expenses, (B) guarantees the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwise;
(v) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale Agreement, the payment of distributions and the return of capital to the Member, the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group;
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Group, holds regular meetings of its board of directors and otherwise observes limited liability company formalities;
(vii) (A) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group reflect the separate existence of the Borrower and (B) the consolidated financial statements of the Parent Group shall contain disclosure to the effect that the Borrower’s assets are not available to the creditors of any member of the Parent Group;
(A) the Borrower 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 Servicer in connection with the servicing of the Transferred Receivables), (B) the Borrower’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 (except (1) with respect to receivables for which the Obligor is The Xxxxxxx Works Co., so long as not more than $400,000 in collections from The Xxxxxxx Works Co. shall be commingled with the Borrower’s funds annually and (2) until December 31, 2008, Collections from Obligors related to the “Integris” unit of JTR which have been instructed to remit Collections to the Concentration Account so long as (x) not more than $20,000,000 of Collections shall be remitted to the Concentration Account each month prior to December 31, 2007 and (y) not more than $7,500,000 of Collections shall be remitted to the Concentration Account each month prior to December 31, 2008) and (C) the separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, to be satisfied out of the Borrower’s assets prior to any value in the Borrower becoming available to the Member;
(ix) all business correspondence and other communications of the Borrower are conducted in the Borrower’s own name, on its own stationery and through a separately-listed telephone number;
(x) the Borrower has and shall maintain separate office space from the offices of any member of the Parent Group and identify such office by a sign in its own name;
(xi) the Borrower shall respond to any inquiries with respect to ownership of a Transferred Receivable by stating that it is the owner of such Transferred Receivable, and that such Transferred Receivable is pledged to the Administrative Agent for the benefit of the Secured Parties;
(xii) the Borrower does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiii) the Borrower maintains at least one (1) independent manager who (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 Borrower), all as provided in its limited liability company agreement, (B) has (1) prior experience as an independent director for an entity whose organizational documents required the unanimous consent of all independent managers 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, independent director services or placement services to issuers of securitization or structured finance instruments, agreements or securities, and (C) has agreed either in the related retention agreement or in the limited liability company agreement of the Borrower to consider the interests of the Borrower and the Borrower’s creditors in taking actions as a manager of the Borrower;
(xiv) the limited liability company agreement of the Borrower requires the affirmative vote of each independent manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower; and
(xv) the Borrower shall maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its members and board of managers;
(xvi) the Borrower shall not hold out credit as being available to satisfy obligations of others;
(xvii) the Borrower shall not acquire obligations or Stock of any member of the Parent Group;
(xviii) the Borrower shall correct any known misunderstanding regarding its separate identity; and
(xix) the Borrower shall maintain adequate capital in light of its obligations and the transactions contemplated hereby.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Ryerson Inc.)
