Nonconsolidation. The 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: 727159853 10435078 24 (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 engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent and 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 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; (A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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; (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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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; 727159853 10435078 25 (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”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 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 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 (Synnex Corp)
Nonconsolidation. The 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: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent and the Requisite LendersAgent, 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;
(A) Borrower shall compensate all employees (if any), consultants and agents directly or indirectly through reimbursement of the ParentMember, from its own funds, for services provided to the 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 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;
(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 including, without limitation, telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Administrative Services Agreement, Member 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 ParentMember, the incurrence of indebtedness under the L/C Note, 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; 727159853 10435078 25;
(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 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, 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 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 LenderGroup;
(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 ParentMember;
(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 LendersSecured 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 two independent directors (each, an “one 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 727159853 10435078 26 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 limited liability company agreement of the Borrower require requires the affirmative vote of each independent director 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 members 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;; and
(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 (Rexnord Corp)
Nonconsolidation. The 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: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent and the Requisite LendersAgent, 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;
(A) Borrower shall compensate all employees (if any), consultants and agents directly or indirectly through reimbursement of the ParentMember, from its own funds, for services provided to the 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 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;
(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 including, without limitation, telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the Administrative Services Agreement, Member 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 ParentMember, the incurrence of indebtedness under the L/C Note, 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; 727159853 10435078 25;
(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 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, 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 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 LenderGroup;
(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 ParentMember;
(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 LendersSecured 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 two one 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, who (A) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Parent Group (other than the Borrower), all as provided in its limited liability company agreement, (B) a supplier to any of the Independent Parties, has (C1) 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 an entity whose charter 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, federal or state or provincial law relating to bankruptcy and (iii2) 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 management, independent director services 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 and (10C) days prior is otherwise acceptable to the effective date of any decision to appoint a new director of the Borrower as an “Independent Director”Administrative Agent, and shall certify the retention arrangement with such independent directors requires them to consider the Lenders that the appointment interest of such new director satisfies the criteria set forth in the definition herein of “Independent Director”Borrower;
(xiv) the bylaws or certificate of incorporation limited liability company agreement of the Borrower require requires 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 members 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;; and
(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 (Rexnord LLC)
Nonconsolidation. The Borrower Seller is operated in such a manner that ---------------- the separate corporate existence of the Borrower, on the one hand, Seller and any each member of the Parent Group, on the other hand, Group 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: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Purchaser, the Operating Agent and the Requisite LendersCollateral 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 or any individual acting as an officer of any such member (Aand not acting as an officer of the Seller) pays is or has been involved in the Borrower’s expenses, (B) guarantees day-to-day management of the Borrower’s obligations, or (C) advances funds to the Borrower for the payment of expenses or otherwiseSeller;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale AgreementReceivables, the acceptance making of Subordinated GFC Loans pursuant to the Sale CGS Transfer Agreement, the payment of distributions dividends and the return of capital to the ParentStockholder Originator, the payment of Servicing Fees to the Servicer under the Sale Agreement this Agreement, and the transactions contemplated under the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains corporate records and books of account separate from that of each member of the Parent Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office separate from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller and each member of the Parent Group CGS Originator reflect the separate corporate 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 LenderSeller;
(A) the Borrower 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 servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s 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 any member of the Parent Group and (C) under applicable law, the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s Seller's assets prior to any value in the Borrower Seller becoming available to the ParentSeller's Stockholders;
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller's organizational documents, no member of the Parent Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the Borrower’s Seller's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiix) the Borrower Seller maintains at least two independent directors (eachA) each of whom (1) is not a Stockholder (whether direct, an “Independent Director”indirect or beneficial), each customer or supplier 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 member of the Borrower, Parent Group; (A2) is not a director, officer, employee, associate, partner, shareholder, member, manager affiliate or affiliate associate of any of the following entities Seller's Affiliates; (collectively3) is not a person related to any person referred to in clauses (1) or (2); (4) is not a trustee, conservator or receiver for any member of the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 of their respective subsidiaries or affiliates (other than the Borrower), Parent Group; and (B) a supplier to any at least one of the Independent Parties, whom has (C1) 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, federal or state or provincial law relating to bankruptcy and (iii2) 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 agreement 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”;; and
(xivxi) the bylaws or the certificate or articles of incorporation of the Borrower Seller require (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;
Seller, (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Purchase and Servicing Agreement (Callaway Golf Co /Ca)
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, Seller and any each member of the Parent Group, on the other hand, Originator Group would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Originator Group and, without limiting the generality of the foregoing: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent Purchasers and the Requisite LendersAdministrative 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 Originator Group (A) pays or any individual at the Borrower’s expenses, (B) guarantees time he or she is acting as an officer of any such member is or has been involved in the Borrower’s obligations, or (C) advances funds to day-to-day management of the Borrower for the payment of expenses or otherwiseSeller;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables Receivables, the making of Subordinated Loans by Synnex pursuant to the Sale Agreement, Subordinated Notes and the acceptance repayment of such Subordinated Loans pursuant to by the Sale AgreementSeller, the payment of distributions rent to Synnex, the payment of dividends and the return of capital to the ParentSynnex, the payment of Servicing Fees to the Servicer under the Sale this Agreement and the transactions contemplated under the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate transactions with any member of the Parent Originator Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains corporate records and books of account separate from that of each member of the Parent Originator Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office separate from that of each member of the Originator Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller and each member of the Parent Group Originators reflect the separate corporate 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 LenderSeller;
(A) the Borrower Seller maintains its assets separately from the assets of each member of the Parent Originator 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 BorrowerSeller’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 Originator Group and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the BorrowerSeller’s assets prior to any value in the Borrower Seller becoming available to the ParentSeller’s Stockholders;
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller’s organizational documents, no member of the Originator Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the BorrowerSeller’s own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Originator Group, but instead presents itself to the public as a legal entity corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiix) the Borrower Seller 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, whom (A) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Originator Group (other than the BorrowerSeller), all as provided in its certificate or articles of incorporation, and (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 is otherwise acceptable 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 Purchasers 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”;Administrative Agent; and
(xivxi) the bylaws or the certificate or articles of incorporation of the Borrower Seller require (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;
Seller, (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Purchase and Servicing Agreement (Synnex Information Technologies Inc)
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, Seller and any each member of the Parent Group, on the other hand, Originator Group would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Originator Group and, without limiting the generality of the foregoing: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent PurchasersPurchaser Agents and the Requisite LendersAdministrative 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 Originator Group (A) pays or any individual at the Borrower’s expenses, (B) guarantees time he or she is acting as an officer of any such member is or has been involved in the Borrower’s obligations, or (C) advances funds to day-to-day management of the Borrower for the payment of expenses or otherwiseSeller;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables Receivables, the making of Subordinated Loans by Synnex pursuant to the Sale Agreement, Subordinated Notes and the acceptance repayment of such Subordinated Loans pursuant to by the Sale AgreementSeller, the payment of distributions rent to Synnex, the payment of dividends and the return of capital to the ParentSynnex, the payment of Servicing Fees to the Servicer under the Sale this Agreement and the transactions contemplated under the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate transactions with any member of the Parent Originator Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains corporate records and books of account separate from that of each member of the Parent Originator Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office separate from that of each member of the Originator Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller and each member of the Parent Group Originators reflect the separate corporate 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 LenderSeller;
(A) the Borrower Seller maintains its assets separately from the assets of each member of the Parent Originator 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 BorrowerSeller’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 Originator Group and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the BorrowerSeller’s assets prior to any value in the Borrower Seller becoming available to the ParentSeller’s Stockholders;
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller’s organizational documents, no member of the Originator Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the BorrowerSeller’s own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Originator Group, but instead presents itself to the public as a legal entity corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiix) the Borrower Seller 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, whom (A) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Originator Group (other than the BorrowerSeller), all as provided in its certificate or articles of incorporation, and (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 is otherwise acceptable 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 PurchasersPurchaser Agents 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”;Administrative Agent; and
(xivxi) the bylaws or the certificate or articles of incorporation of the Borrower Seller require (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;
Seller, and (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Purchase and Servicing Agreement (Synnex Corp)
Nonconsolidation. The 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: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent and the Requisite LendersAgent, 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;
(A) Borrower shall compensate all employees (if any), consultants and agents directly or indirectly through reimbursement of the ParentMember, from its own funds, for services provided to the 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 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;
(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 including, without limitation, telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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; 727159853 10435078 25
(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”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 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 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 (RBS Global Inc)
Nonconsolidation. The 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: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent and the Requisite LendersAgent, 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 managers and its business is managed solely by its own officers and directorsmanagers, 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 manager and not as an officer, director, employee or agent of any member of the Parent Group;
(Aiii) Borrower shall compensate all employees, consultants and agents directly or indirectly through reimbursement of the Parent, from its own funds, for services provided to the 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 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 employeesAgreement;
(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 including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 Agreementtherein, the payment of distributions and the return of capital to the ParentMember, the payment of Servicing Fees to servicing arrangements with 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; 727159853 10435078 25;
(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 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, 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 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 LenderGroup;
(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 ParentMember;
(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 one independent directors (each, an “Independent Director”), 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, whom (A) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Parent Group (other than the Borrower), all as provided in its limited liability company agreement, (B) a supplier to any of the Independent Parties, has (C1) 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 an entity whose charter organizational documents required the unanimous consent of all independent directors 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, federal or state or provincial law relating to bankruptcy and (iii2) 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 management, independent director services 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 and (10C) days prior is otherwise acceptable 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”Administrative Agent;
(xiv) the bylaws or certificate of incorporation limited liability company agreement of the Borrower require requires the affirmative vote of each independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;; and
(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 members 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 Borrowermanagers.
Appears in 1 contract
Samples: Receivables Funding and Administration Agreement (Vertis Inc)
Nonconsolidation. The Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, Borrower and any each member of the Parent Group, on the other hand, Servicer Group would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Servicer Group and, without limiting the generality of the foregoing: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation Massachusetts business trust whose activities are restricted in its certificate of incorporation the Trust Documents, in the Prospectus, and in the Investment and Valuation Policies to those activities expressly permitted therein and hereunder and under the other Related Documents Documents, and the Borrower has not engaged, and does not presently engage, in any business or other activity other than those activities expressly permitted hereunder hereunder, in the Prospectus, 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 the prior written consent of the Administrative Agent and 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 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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; 727159853 10435078 25
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Servicer Group, holds regular trustee meetings of its board of directors and otherwise observes corporate trust formalities;
(vii) (Aiii) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Servicer 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 Servicer 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 ReceivablesTrust Investments), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s '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 Servicer Group and (C) the separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the ParentBorrower's Stockholders (other than pursuant to tenders conducted in accordance with Section 23(c)(2) of the Investment Company Act);
(ixv) except as otherwise expressly permitted hereunder, under the other Related Documents, under the Servicing Agreements and under the Borrower's organizational documents, no member of the Servicer Group
(A) pays the Borrower's expenses (other than by reason of a waiver of the fees to which the member is entitled), (B) guarantees the Borrower's obligations, or (C) advances funds on other than a short-term basis to the Borrower for the payment of expenses or otherwise;
(vi) all business correspondence and other communications of the Borrower are conducted in by the Borrower’s own name, Servicer or another member of the Servicer Group on its own stationery behalf of the Borrower separate and through a separately-listed telephone numberapart from any other investment company or other Person for which the Servicer (or other member of the Servicer Group) acts as servicer or investment adviser;
(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;
(xiivii) the Borrower does not act as agent for any member of the Parent Servicer Group, but instead presents itself to the public as a legal entity trust separate from each such member and independently engaged in the business of purchasing investing in accordance with its Prospectus and financing Receivablesthe Investment and Valuation Policies;
(xiiiviii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: whom is not an "interested person" (ias that term is defined in Section 2(a)(19) 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, (AInvestment Company Act) 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 727159853 10435078 26 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 or the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;Servicer; and
(xivix) the bylaws or certificate of incorporation of Trust Documents require 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 to maintain (1A) correct and complete books and records of account and (2B) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Borrowertrustees.
Appears in 1 contract
Samples: Revolving Loan Agreement (Pilgrim America Prime Rate Trust)
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate existence of the BorrowerSeller, 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: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent Purchasers and the Requisite LendersAdministrative 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 Seller's business is managed solely by its own officers and directors, each of whom when acting for the Borrower Seller shall be acting solely in his or her capacity as an officer or director of the Borrower Seller, and not as an officer, director, employee or agent of any member of the Parent Group;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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;
(viii) other than the purchase and acceptance through capital contribution sale of Transferred Receivables pursuant to the Sale AgreementReceivables, the acceptance making of Subordinated Loans pursuant to the Sale Agreementcapital contributions, the payment of distributions dividends and the return of capital to the Parentits Stockholders, the payment of Servicing Fees to the Servicer under the Sale this Agreement and the transactions contemplated under evidenced by the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains corporate records and books of account separate from that of each member of the Parent Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office segregated from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller, the Parent, Eagle-Picher Holdings, Inc. and each member of the Parent Group Originators reflect the separate corporate 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 LenderSeller;
(A) the Borrower Seller maintains its assets separately from the assets of each member of the Parent Group (Group, including through the maintenance of separate bank accounts and and, except for any Records to the extent necessary to assist the Servicer in connection with the servicing of the Transferred Receivables), through the maintenance of separate records and books of account, (B) except as contemplated by the Administrative Services Agreement, the Borrower’s 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 any member of the Parent Group and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s Seller's assets prior to any value in the Borrower Seller becoming available to the ParentSeller's Stockholder(s);
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller's organizational documents, no member of the Parent Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the Borrower’s Seller's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiiA) subject to CLAUSE (B) below, the Borrower Seller maintains at least two independent directors (each, an “Independent Director”), each of whom: whom (i1) shall is not have been at the time of his or her appointment or at any time during the preceding five yearsa Stockholder, and shall not be as long as he or she is a director of the Borrower, (A) a director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Parent Group (other than the BorrowerSeller), all as provided in its certificate or articles of incorporation, (2) is affiliated with Global Securitization Services, LLC, Lord Securities Corporation or Amacar Group, L.L.C. or a similar nationally recognized organization acceptable to the Administrative Agent which is in the business of providing independent directors for special-purpose financing entities such as the Seller, and (3) is otherwise acceptable to the Purchasers and the Administrative Agent and (B) a supplier to any the Seller's articles of incorporation and by-laws provide that in the event of the Independent Partiesdeath, (C) incapacity, resignation or removal of an entity controlling or under common control with any partnerindependent director, shareholder, member, manager, affiliate or supplier the board of any directors of the Independent Parties, or (D) Seller will promptly appoint a member replacement independent director and will not vote on any matter requiring the vote 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 unless and until at least two independent directors thereof before have been duly appointed to serve on such corporation could consent to the institution board 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”;directors; and
(xivxi) the bylaws or the certificate or articles of incorporation of the Borrower Seller require (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;
Seller, and (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Purchase and Servicing Agreement (Daisy Parts Inc)
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate legal existence of the BorrowerSeller, 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: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation formation and limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent Required Purchasers and the Requisite LendersAgent, 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 or any individual at the Borrower’s expenses, (B) guarantees time he or she is acting as an officer of any such member is or has been involved in the Borrower’s obligations, or (C) advances funds to day-to-day management of the Borrower for the payment of expenses or otherwiseSeller;
(viii) 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 AgreementReceivables, the payment of distributions dividends and the return of capital to the ParentOriginators, the payment of Servicing Fees to the Servicer under the Sale this Agreement and the transactions contemplated under evidenced by the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate inter-entity transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains limited liability company records and books of account separate from that of each member of the Parent Group, holds regular limited liability company meetings of its board of directors and otherwise observes corporate formalitieslimited liability company formalities and has a business office separate from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller and each member of the Parent Group Originators reflect the separate legal 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 LenderSeller;
(A) the Borrower 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 servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s 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 any member of the Parent Group and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s Seller's assets prior to any value in the Borrower Seller becoming available to the ParentSeller's members; WNC Receivables, LLC Receivables Purchase and Servicing Agreement
(vii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller's organizational documents, no member of the Parent Group (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;
(ixviii) all business correspondence and other communications of the Borrower Seller are conducted in the Borrower’s Seller's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity limited liability company separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiix) the Borrower Seller 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 one Independent Member (as defined in Seller's limited liability company agreement as in effect on the following entities date hereof) that has two Independent Directors (collectively, as defined in Seller's limited liability company agreement as in effect on the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 of their respective subsidiaries or affiliates (other than the Borrower), date hereof) and (B) a supplier to any of two Independent Managers (as defined in Seller's limited liability company agreement as in effect on 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”hereof);
(xivxi) the bylaws or Seller's certificate of incorporation of the Borrower formation and limited liability company agreement require (A) the affirmative vote of each independent director manager, including the Independent Managers, and each member (including the Independent Member, pursuant to the authorization of its board of directors including the affirmative votes of its Independent Directors) before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
Seller, and (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders members 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 Borrowermanagers.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Wabash National Corp /De)
Nonconsolidation. The Borrower is operated in such a manner that the separate corporate existence of the Borrower, on the one hand, Borrower and any each member of the Parent Group, on the other hand, Servicer Group would not be disregarded in the event of the bankruptcy or insolvency of any member of the Parent Servicer Group and, without limiting the generality of the foregoing: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation Delaware business trust whose activities are restricted in its certificate of incorporation the Trust Documents, in the Prospectus, and in the Investment and Valuation Policies to those activities expressly permitted therein and hereunder and under the other Related Documents Documents, and the Borrower has not engaged, and does not presently engage, in any business or other activity other than those activities expressly permitted hereunder hereunder, in the Prospectus, 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 the prior written consent of the Administrative Agent and 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 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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; 727159853 10435078 25
(vi) the Borrower maintains records and books of account separate from that of each member of the Parent Servicer Group, holds regular trustee meetings of its board of directors and otherwise observes corporate trust formalities;
(vii) (Aiii) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Servicer 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 Servicer 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 ReceivablesTrust Investments), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s '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 Servicer Group and (C) the separate creditors of the Borrower will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the ParentBorrower's Stockholders (other than pursuant to tenders conducted in accordance with Section 23(c) of the Investment Company Act and the rules and regulations promulgated thereunder);
(ixv) except as otherwise expressly permitted hereunder, under the other Related Documents, under the Servicing Agreements and under the Borrower's organizational documents, no member of the Servicer Group
(A) pays the Borrower's expenses (other than by reason of a waiver of the fees to which the member is entitled or pursuant to the Expense Limitation Agreement), (B) guarantees the Borrower's obligations, or (C) advances funds on other than a short-term basis to the Borrower for the payment of expenses or otherwise;
(vi) all business correspondence and other communications of the Borrower are conducted in by the Borrower’s own name, Servicer or another member of the Servicer Group on its own stationery behalf of the Borrower separate and through a separately-listed telephone numberapart from any other investment company or other Person for which the Servicer (or other member of the Servicer Group) acts as servicer or investment adviser;
(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;
(xiivii) the Borrower does not act as agent for any member of the Parent Servicer Group, but instead presents itself to the public as a legal entity trust separate from each such member and independently engaged in the business of purchasing investing in accordance with its Prospectus and financing Receivablesthe Investment and Valuation Policies;
(xiiiviii) the Borrower maintains at least two independent directors (each, an “Independent Director”), each of whom: whom is not an "interested person" (ias that term is defined in Section 2(a)(19) 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, (AInvestment Company Act) 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 727159853 10435078 26 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 or the Lenders that the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;Servicer; and
(xivix) the bylaws or certificate of incorporation of Trust Documents require 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 to maintain (1A) correct and complete books and records of account and (2B) minutes of the meetings and other proceedings of its shareholders Stockholders 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 Borrowertrustees.
Appears in 1 contract
Nonconsolidation. The 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: 727159853 10435078 24:
(i) the Borrower is a limited purpose corporation whose activities are restricted in its certificate or articles of incorporation to those activities expressly permitted hereunder and under the other Related Documents and the Borrower has not engaged, and 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 which it is a party and, with the prior written consent of the Administrative Agent Lenders and the Requisite LendersAdministrative Agent, any other agreement necessary to carry out more effectively the provisions and purposes hereof or thereof;
(ii) no individual at the Borrower has duly appointed a board of directors and its business time he or she is managed solely by its own officers and directors, each of whom when acting for specifically in 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 GroupGroup is or will be acting in the capacity as an officer or employee of the Borrower;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale AgreementReceivables, the acceptance making of Subordinated Buyer Loans pursuant to the Sale AgreementParent Note, the payment of distributions dividends and the return of capital to the Parent, Parent and the payment of Servicing Fees to the Servicer under the Sale Agreement and the transactions contemplated under the Administrative Services this Agreement, the Borrower engages and has engaged in no intercorporate transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower maintains corporate records and books of account separate from that of each member of the Parent Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office separate from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of the Parent Group Originators reflect the separate corporate 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 Lock box Agreement, the Borrower’s '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, entitled to be satisfied out of the Borrower’s 's assets prior to any value in the Borrower becoming available to the ParentBorrower's Stockholders;
(ixvii) 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;
(viii) all business correspondence and other communications of the Borrower are conducted in the Borrower’s 's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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;
(xix) 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 LendersAgent;
(xiixi) 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 corporation separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiixii) 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, whom (A) is employed by a firm or company other than Parent or an Affiliate of Parent which provides such independent directors in the ordinary course of its business, and is acceptable to the Administrative Agent, (B) by a firm or company which is not an Affiliate of Parent, provides such independent direction in the ordinary course of its business, and is acceptable to the Administrative Agent, (C) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Parent Group (other than the Borrower), (B) a supplier to any all as provided in its certificate or articles of the Independent Partiesincorporation, (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; has (ii1) 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, federal or state or provincial law relating to bankruptcy and (iii2) 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 (E) is otherwise acceptable to the Lenders that and the appointment of such new director satisfies the criteria set forth in the definition herein of “Independent Director”;Administrative Agent; and
(xivxiii) the bylaws or the certificate or articles of incorporation of the Borrower require (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 (xvB) the Borrower shall to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate legal existence of the BorrowerSeller, 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: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation limited liability company whose activities are restricted in its certificate of incorporation limited liability company agreement to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent Purchaser and the Requisite LendersAdministrative 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 or any individual at the Borrower’s expensestime he or she is acting as an officer of any such member is or has been involved in the day-to-day management of the Seller; provided that nothing herein shall prohibit any individual from
A. M. Castle & Xx.xx al. and Castle SPFD, (B) guarantees LLC, Receivables Purchase and servicing Agreement being at the Borrower’s obligations, same time an officer of the Seller and any member of the Parent Group or (C) advances funds to the Borrower for the payment of expenses or otherwiseany Originator;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to and the Sale Agreement, the acceptance of Subordinated Loans pursuant to the Sale AgreementRelated Security, the payment of distributions dividends and the return of capital to the ParentOriginators, the payment of Servicing Fees to the Master Servicer, the payment of Applicable Servicing Fee to each other Servicer under the Sale this Agreement and the transactions contemplated under evidenced by the Administrative Ancillary Services and Lease Agreement, the Borrower Seller engages and has engaged in no intercorporate inter-entity transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains limited liability company records and books of account separate from that of each member of the Parent Group, holds regular limited liability company meetings of its board of directors and otherwise observes corporate formalitieslimited liability company formalities and has a business office separate from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower Seller and each member of the Parent Group Originators reflect the separate legal 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 LenderSeller;
(A) the Borrower 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 Servicers in connection with the servicing of the Transferred Receivables), (B) except as contemplated by the Administrative Services Agreement, the Borrower’s 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 any member of the Parent Group and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s Seller's assets prior to any value in the Borrower Seller becoming available to the ParentSeller's Equity Holders or any of the creditors of the Seller's Equity Holders;
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller's organizational documents, no member of the Parent Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the Borrower’s Seller's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal entity limited liability company 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 727159853 10435078 26 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 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.A.
Appears in 1 contract
Samples: Receivables Purchase and Servicing Agreement (Castle a M & Co)
Nonconsolidation. The Borrower Seller is operated in such a manner that the separate corporate existence of the BorrowerSeller, 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: 727159853 10435078 24:
(i) the Borrower Seller is a limited purpose corporation entity whose activities are restricted in its certificate of incorporation limited liability company agreement and other organizational documents to those activities expressly permitted hereunder and under the other Related Documents and the Borrower Seller has not engaged, and 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 Seller entered into any agreement other than this Agreement, the other Related Documents to which it is a party and, with the prior written consent of the Administrative Agent Purchasers and the Requisite LendersAdministrative 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;
(A) Borrower shall compensate all consultants and agents directly or indirectly through reimbursement of the Parent, 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;
(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 telephone and other utility charges, the services of shared consultants and agents, and reasonable legal and auditing expenses) which are not reflected in the Servicing Fee, and other items of cost and expense shared between the Borrower and the Parent, pursuant to the terms of the 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 or any individual at the Borrower’s expensestime he or she is acting as an officer of any such member is or has been involved in the day-to-day management of the Seller; provided, (B) guarantees however, that the Borrower’s obligations, or (C) advances funds foregoing shall not prohibit any individual from being an officer with respect to the Borrower for Seller, the payment of expenses or otherwiseServicer, the Originator and the Parent simultaneously;
(viii) other than the purchase and acceptance through capital contribution of Transferred Receivables pursuant to the Sale Agreement, the acceptance and any capital contributions of Subordinated Loans pursuant to the Sale Agreementcash, the payment of distributions dividends and the return of capital to the ParentOriginator, the payment of Servicing Fees to the Servicer under the Sale this Agreement and arm's length transactions with respect to the transactions contemplated under the Administrative Services Agreementprovision of office space, office equipment, office supplies and administrative services, the Borrower Seller engages and has engaged in no intercorporate transactions with any member of the Parent Group; 727159853 10435078 25;
(viiv) the Borrower Seller maintains corporate records and books of account separate from that of each member of the Parent Group, holds regular corporate meetings of its board of directors and otherwise observes corporate formalitiesformalities and has a business office separate from that of each member of the Parent Group;
(vii) (Av) the financial statements (other than consolidated financial statements) and books and records of the Borrower and each member of Seller, the Parent Group and the Originator reflect the separate corporate 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 LenderSeller;
(A) the Borrower Seller maintains its assets separately from the assets of each member of the Parent Group (including through the maintenance of separate records, books of account and 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 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 any member of the Parent Group except for temporary commingling of the type described in Section 7.03 which is promptly corrected as described in Section 7.03 and (C) the separate creditors of the Borrower Seller will be entitled, on the winding-up of the Borrower, entitled to be satisfied out of the Borrower’s Seller's assets prior to any value in the Borrower Seller becoming available to the ParentSeller's Stockholders;
(ixvii) except as otherwise expressly permitted hereunder, under the other Related Documents and under the Seller's organizational documents, no member of the Parent Group (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;
(viii) all business correspondence and other communications of the Borrower Seller are conducted in the Borrower’s Seller's own name, on its own stationery and through a separately-listed telephone number;
(xix) 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 Seller does not act as agent for any member of the Parent Group, but instead presents itself to the public as a legal an entity separate from each such member and independently engaged in the business of purchasing and financing Receivables;
(xiiix) the Borrower Seller maintains at least two independent directors (each, an “Independent Director”), managers 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, whom (A) is not a Stockholder, director, officer, employee, employee or associate, partner, shareholder, member, manager or affiliate of any of the following entities (collectively, the “Independent Parties”): SYNNEX Corporation, any Originator, or any 727159853 10435078 26 relative of their respective subsidiaries or affiliates the foregoing, of any member of the Parent Group (other than the BorrowerSeller), all as provided in its limited liability company agreement, (B) a supplier to any of the Independent Parties, has (C1) 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, federal or state or provincial law relating to bankruptcy and (iii2) 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 and (10C) days prior is otherwise acceptable to the effective date Purchasers and the Administrative Agent (it being understood that any director affiliated with Global Securitization Services, LLC, Lord Securities Corporation or Amacar, L.L.C. or a similar organization acceptable to the Administrative Agent which is in the business of any decision providing independent directors for special-purpose financing entities such as the Seller shall be acceptable to appoint a new director the Administrative Agent; and
(xi) the limited liability company agreement 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”;
Seller require (xivA) the bylaws or certificate of incorporation of the Borrower require the affirmative vote of each independent director manager before a voluntary petition under Section 301 of the Bankruptcy Code may be filed by the Borrower;
Seller, and (xvB) Borrower shall the Seller to maintain (1) correct and complete books and records of account and (2) minutes of the meetings and other proceedings of its shareholders Stockholders 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.
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Samples: Receivables Purchase and Servicing Agreement (Avondale Inc)
